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Freeman v. The University of Illinois at Chicago

United States District Court, N.D. Illinois, Eastern Division

January 29, 2018

MARIO FREEMAN, Plaintiff,
v.
THE UNIVERSITY OF ILLINOIS AT CHICAGO, et al., Defendants.

          MEMORANDUM OPINION

          SAMUEL DER-YEGHIAYAN, District Judge

         This 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.

         BACKGROUND

         On 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.

         LEGAL STANDARD

         Federal 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. Id.

         In 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 omitted), DISCUSSION

         Defendants 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.

         I. Claims Brought Against the UIC and Police Department

         UIC 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.

         II. Claims Brought against Board and Lubin in his Official Capacity

         UIC 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.

         Employees, 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 granted.

         III. Claims Brought Against Lubin in ...


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