United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ALONSO, UNITED STATES DISTRICT JUDGE
Deisy Jaimes, Enrique Jaimes, and Gloria Jaimes have filed an
eleven-count second amended complaint against defendants Cook
County, Sheriff Thomas J. Dart, Cara Smith, Dr. Nneka Jones,
George Turner, Superintendent Jeff K. Johnsen, Sergeant
Phillips, Sergeant Monroe, Lieutenant Juanita Peterson,
Lieutenant Sharon Lee, and the Estate of Erika Aguirre,
alleging claims under 42 U.S.C. § 1983 (Counts I-III),
Monell claims (Counts IV-VI), and various state law
claims (Counts VII-XI). All defendants, except for Lieutenant
Lee and the Estate of Erika Aguirre, move pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss Counts I, II,
III, VII, VIII, IX, X and XI of plaintiffs' second
amended complaint . For the reasons set forth below, the
motion is granted in part and denied in part. Status set for
September 26, 2019 at 9:30 a.m.
purposes of this motion, the Court accepts as true the
following allegations in plaintiffs' second amended
November 15, 2015, Cook County Jail Correctional Officer
Erika Aguirre broke into the home of her ex-girlfriend, Deisy
Jaimes (“Deisy”). Using her service weapon,
Officer Aguirre shot both Deisy and Deisy's father,
Enrique, causing severe, permanent injuries to each. Officer
Aguirre then took her own life. Prior to the shooting,
Officer Aguirre and Deisy had lived together for four years.
During that time, Officer Aguirre had been verbally and
emotionally abusive to Deisy. Officer Aguirre also had two
disciplinary incidents at work, both of which involved her
losing her temper. Deisy ended the relationship a few months
before the shooting.
Cook County Sheriff's Office deputizes its correctional
officers, thereby authorizing these officers to carry a
service weapon. Correctional officers who work at the Jail
are prohibited from bringing their service weapons into the
Jail. According to plaintiffs, correctional officers at the
Jail regularly subject detainees to excessive force, and
supervisory officials at the Cook County Sheriff's Office
and the Cook County Jail have a history of covering up or
condoning this behavior.
November 14, 2016, plaintiffs filed a complaint in the
Circuit Court of Cook County, Illinois against defendants
Cook County, the Sheriff of Cook County in his official
capacity, and the Cook County Department of Corrections,
alleging claims of willful and wanton conduct (Counts I-II)
and loss of consortium (Count III). On November 29, 2016,
plaintiffs filed a motion pursuant to 735 ILCS 5/2-1009(a) to
voluntarily dismiss the matter without prejudice. The motion
was granted on December 2, 2016. On November 15, 2017,
plaintiffs filed the instant action and added several new
defendants and several new claims.
now move to dismiss, arguing that plaintiffs have filed an
impermissible group pleading, the state law claims against
certain defendants are time-barred, and Officer Aguirre was
not acting within the scope of her employment at the time of
motion under Rule 12(b)(6) tests whether the complaint states
a claim on which relief may be granted.” Richards
v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under
Rule 8(a)(2), a complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short
and plain statement under Rule 8(a)(2) must “give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted).
Under federal notice-pleading standards, a plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id.
Stated differently, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “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.”
Id. (citing Twombly, 550 U.S. at 556).
“In reviewing the sufficiency of a complaint under the
plausibility standard, [courts must] accept the well-pleaded
facts in the complaint as true, but [they] ‘need not
accept as true legal conclusions, or threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements.” Alam v. Miller Brewing
Co., 709 F.3d 662, 665-66 (7th Cir. 2013) (quoting
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)).
Statute of limitations affirmative defense
to comply with a statute of limitations is an affirmative
defense. Fed.R.Civ.P. 8(c)(1). A plaintiff need not plead
around an affirmative defense, and the Court may dismiss on
the basis of an affirmative defense only where a plaintiff
alleges, and thus admits, the elements of the affirmative
defense. Chicago Bldg. Design, P.C. v. Mongolian House,
Inc., 770 F.3d 610, 613-14 (7th Cir. 2014); United
States Gypsum Co. v. Indiana Gas Col, Inc., 350 F.3d
623, 626 (7th Cir. 2003).
claim for relief arises from the November 15, 2015 incident.
Plaintiffs first filed suit against Cook County, the Sheriff
of Cook County, and the Cook County Department of Corrections
(the “original defendants”) on November 14, 2016.
Roughly two weeks later, on November 29, 2016, plaintiffs
voluntarily dismissed the action with leave to re-file. On
November 15, 2017, plaintiffs filed this action and added
several new defendants, including Cara Smith, Nneka Jones,