United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN, District Judge
matter is before the court on Defendants' partial motion
to dismiss. For the reasons stated below, the partial motion
to dismiss is granted in part and denied in part.
March 6, 2016, Plaintiff Mario Freeman (Freeman) was
allegedly a customer at a restaurant (Restaurant) in Chicago,
Illinois. Freeman allegedly got in an argument with family
members when leaving the Restaurant. Defendant Officer Lubin
(Lubin), who is an officer with the University of Illinois at
Chicago Police Department, allegedly responded to a call
regarding an altercation occurring outside the Restaurant,
Lubin allegedly observed Freeman walking away from the
Restaurant. Freeman claims that as Lubin approached him, he
raised his arms in the air. According to Freeman, Lubin
subdued Freeman with the assistance of two nearby security
guards, Defendant Myleson Collins (Collins), and Defendant
Richard McSwain (McSwain). Lubin, Collins, and McSwain
allegedly threw Freeman on the ground, and struck, punched,
kneed, and stepped on Freeman. Freeman includes in his
amended complaint claims brought under 42 U.S.C. § 1983
(Section 1983) alleging that his constitutional rights were
violated by the use of excessive force by Lubin (Count I),
and assault and battery claims (Counts 11-111). Defendant The
Board of Trustees of the University of Illinois (Board),
Defendant The University of Illinois at Chicago (UIC),
Defendant The University of Illinois at Chicago Police
Department (Police Department), and Lubin now move to dismiss
the claims brought against them.
Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) requires a
court to dismiss an action when it lacks subject matter
jurisdiction. Fed, R. Civ. P. 12(b)(1); see also Ezekiel
v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that
when reviewing a motion to dismiss brought under Rule
12(b)(1), the court "must accept as true all
well-pleaded factual allegations, and draw reasonable
inferences in favor of the plaintiff). When subject matter
jurisdiction is not apparent on the face of the complaint and
is contested, "the district court may properly look
beyond the jurisdictional allegations of the complaint... to
determine whether in fact subject matter jurisdiction
exists." Sapperstein v. Eager, 188 F.3d 852,
855-56 (7th Cir. 1999)(internal quotations omitted)(quoting
United Transportation Union v. Gateway Western Railway
Co,, 78 F.3d 1208, 1210 (7th Cir. 1996)). The burden of
proof in regards to a Rule 12(b)(1) motion is on the party
asserting that the court has subject matter jurisdiction.
ruling on a motion to dismiss brought pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court
must draw all reasonable inferences that favor the plaintiff,
construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all
well-pleaded facts and allegations in the complaint.
Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d
609, 622 (7th Cir. 2012); Thompson v. Dep 't of Prof
I Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A
plaintiff is required to include allegations in the complaint
that "plausibly suggest that the plaintiff has a right
to relief, raising that possibility above a 'speculative
level'" and "if they do not, the plaintiff
pleads itself out of court." E.E.O.C. v. Concentra
Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1965 (2007)); see also
Morgan Stanley Dean Witter, Inc., 673 F.3d at 622
(stating that "[t]o survive a motion to dismiss, the
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face, " and that "[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")(quoting Ashcroft
v. Iqbal, 556 U.S. 662 (2009))(internal quotations
move to dismiss based on sovereign immunity pursuant to Rule
12(b)(1). The court initially notes that a motion to dismiss
based on sovereign immunity should be brought pursuant to
Rule 12(b)(6) rather than Rule 12(b)(1). See Meyers v.
Oneida Tribe of Indians of Wisconsin, 836 F.3d 818, 822
(7th Cir. 2016)(explaining that "this circuit has
clearly held that the question of sovereign immunity is not a
jurisdictional one" and explaining that sovereign
immunity is a waivable defense"); Abdulqader v.
United States, 596 Fed.Appx. 515, 516 (7th Cir.
2015)(indicating that dismissal based on sovereign immunity
"is for failure to state a claim for relief, ... not
lack of jurisdiction"). Regardless of which standard is
applied, the result is the same in this instance.
Claims Brought Against the UIC and Police Department
Defendants move to dismiss the claims brought against UIC and
the Police Department. UIC and the Police Department are
merely subdivisions of the State of Illinois and are not
suable entities. See, e.g. Averhart v. City of
Chicago, 114 Fed.Appx. 246, 247 (7th Cir. 2004)(stating
that "the Chicago Police Department is not a suable
entity separate from the City of Chicago");
Slaughter v. Rutledge, 2017 WL 4693966, at *2 n.l
(CD. 111. 2017)(stating that "the Peoria City Police
Department" was "not a suable entity apart from the
City of Peoria"); McDaniels v, Smith, 2017 WL
3891660, at *3 (E.D. Wis. 2017)(explaining that "the
City of Oshkosh Police Department is not a suable
entity"); Muhammad v. Moore, 2014 WL 11394916,
at *4 (CD. 111. 2014)(indicating that the University of
Illinois "is not a suable entity"); Stoltey v.
Clark, 2006 WL 581027, at *2 (CD. 111. 2006)(indicating
that the University of Illinois is not a suable defendant);
Williams v. Univ. of Illinois, 945 F.Supp. 163, 165
(N.D. 111. 1996)(stating that "[t]he University of
Illinois Police Department. . . like virtually all city or
local police departments" is not "a suable
entity"). Therefore, UIC Defendants' motion to
dismiss the claims brought against the Police Department and
UIC is granted.
Claims Brought against Board and Lubin in his Official
Defendants move to dismiss the claims brought against the
Board and against Lubin in his official capacity. The claims
are essentially one and the same since claims brought against
state officials in their official capacity is "the
equivalent of claims against the state. . . ."
Katz-Crankv. Haskett, 843 F.3d 641, 646-47 (7th Cir.
2016). The Eleventh Amendment "guarantees that an
unconsenting State is immune from suits brought in federal
courts by her own citizens as well as by citizens of another
State." Council 31 of the Am. Fed'n of State,
Cty. & Mun.
AFL-CIO v. Quinn, 680 F.3d 875, 881 (7th Cir.
2012)(quoting Edelman v. Jordan, 415 U.S. 651, 663
(1974)). The Board is deemed an instrumentality of the State
of Illinois and is protected by the Eleventh Amendment.
See Peirick v. Indiana Univ.-Purdue Univ. Indianapolis
Athletics Dep't, 510 F.3d681, 695 (7th Cir.
2007)(indicating that the "Board of Trustees of the
University of Illinois are state agencies with Eleventh
Amendment immunity"); Mutter v. Madigan, 17
F.Supp.3d 752, 757 (N.D. 111. 2014)(stating that "state
universities, as well as their governing bodies, are
protected from suit under the Eleventh Amendment").
Freeman has not shown that the State of Illinois has
consented to suit in this matter and he has not pointed to
any statutory authority or case law which would authorize
suit against the State of Illinois in this matter. Therefore,
UIC Defendants' motion to dismiss the claims brought
against the Board and Lubin in his official capacity is
Claims Brought Against Lubin in ...