United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Marvin E. Aspen United States District Judge.
before us is Defendants City of Chicago and Officer Michael
Walsh's motion to dismiss Count IV of Plaintiff's
complaint, alleging intentional infliction of emotional
distress, for failure to state a claim upon which relief may
be granted. For the reasons set forth below, we grant
Defendants' motion, with prejudice.
motion to dismiss stage, 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). On October 5,
2015, Officer Walsh was searching for a suspect at a
barbershop located at 5455 West Madison Street, Chicago,
Illinois. (Compl. ¶ 11.) Officer Walsh exited the rear
of the barbershop where Plaintiff's mobile home was
located, and entered Plaintiff's home. (Id.
¶¶ 12-13.) Plaintiff objected to Officer Walsh
searching his home and, after the search was unsuccessful,
Officer Walsh became “furious, . . . kicked Plaintiff
in his face, slammed him to the ground, and cuffed
him.” (Id. ¶ 14.) Plaintiff alleges that
while he was handcuffed on the ground, Officer Walsh
“beat him about his person, and subsequently struck him
in the face with his knee cap causing bleeding and
bruising.” (Id. ¶ 15.) According to
Plaintiff, Officer Walsh then “fabricated police
reports stating that Plaintiff had battered him and assaulted
him, ” and those reports “were the moving force
behind Plaintiff being criminally charged for battery,
assault and resisting a peace officer.” (Id.
¶ 19.) Plaintiff was found not guilty of those charges
on November 30, 2016. (Id. ¶ 21.)
filed this action against Defendants on February 3, 2017,
alleging 42 U.S.C. § 1983 claims for the use of
excessive force, illegal entry, and false arrest, as well as
Illinois state-law claims of intentional infliction of
emotional distress and malicious prosecution, and a state-law
indemnification claim against the City of Chicago. Defendants
moved to dismiss Plaintiff's state-law intentional
infliction of emotional distress claim on April 5, 2017.
(Mot. (Dkt. No. 8).) Plaintiff did not file a response to the
motion to dismiss for failure to state a claim upon which
relief may be granted is governed by Rule 12(b)(6) of the
Federal Rules of Civil Procedure. “The purpose of the
motion to dismiss is to test the sufficiency of the
complaint, not decide the merits.” Gibson v. City
of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (internal
quotation marks omitted) (quoting Triad Assocs., Inc. v.
Chi. Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)).
Dismissal pursuant to Rule 12(b)(6) is proper only if a
complaint lacks enough facts “to state a claim [for]
relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-50 (2009)
(internal quotation marks omitted) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
1974 (2007)); accord. Killingsworth v. HSBC Bank Nev.,
N.A., 507 F.3d 614, 618-19 (7th Cir. 2007). 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.” Ashcroft, 556 U.S. at 678, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127
S.Ct. at 1964-65). That is, while the plaintiff need not
plead “detailed factual allegations, ” the
complaint must allege facts sufficient “to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65.
argue that Plaintiff's state-law intentional infliction
of emotional distress claim is barred by the one-year statute
of limitations set out in the Illinois Tort Immunity Act, 745
ILCS 10/8-101(a). The Illinois Tort Immunity Act requires
civil actions against local entities or their employees, such
as the City of Chicago and Officer Walsh, be “commenced
within one year from the date that the injury was received or
the cause of action accrued.” 745 ILCS 10/8-101(a). In
Illinois, “a cause of action for personal injuries
accrues when the plaintiff suffers injury.” Golla
v. General Motors Corp., 164 Ill.2d 353, 360, 657 N.E.2d
894, 898 (Ill. 1995). Thus, “a claim for intentional
infliction of emotional distress in the course of arrest . .
. accrues on the date of the arrest.” Bridewell v.
Eberle, 730 F.3d 672, 678 (7th Cir. 2013) (applying
Illinois law). Plaintiff's intentional infliction of
emotion distress claim arises from the events that occurred
during his arrest on October 5, 2015. Because Plaintiff did
not file his intentional infliction of emotional distress
claim until February 3, 2017, his claim is time-barred and we
grant Defendants' motion to dismiss Count IV, with
prejudice. See Logan v. Wilkins, 644 F.3d 577, 582
(7th Cir. 2011) (“While a statute of limitations
defense is not normally part of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), when the
allegations of the complaint reveal that relief is barred by
the applicable statute of limitations, the complaint is
subject to dismissal for failure to state a claim.”).
foregoing reasons, we grant Defendants' motion to dismiss
Count IV of Plaintiffs complaint, with prejudice. It is so
 “A litigant's failure to
respond to arguments the opposing party raises in a motion to
dismiss operates as a waiver or forfeiture.” Rose
v. Mystery Method, Inc., No. 7 C 5727, 2008 WL 723331,
at *6 (N.D. Ill. March 14, 2008). Regardless of
Plaintiff's forfeiture, we find his ...