Opinion
97 C 8796
February 23, 2000
MEMORANDUM AND ORDER
On December 19, 1996, Ronnie Berry, the former chief of police of the Village of Phoenix, Illinois, hit his wife, Stephanie Jackson-Berry, in the head with a hand gun, dragged her to the basement of their home, bound her with duct tape, covered her with a tarp, and shot her in the chest. Plaintiff Cora Wright, as the special administrator of Jackson-Berry's estate and the guardian and next friend of Jackson Berry's four daughters, has filed a 23-count Amended Complaint pursuant to 42 U.S.C. § 1983 and 1985 against Berry, the Village, the Village's current police chief; Cooper Davis, Deputy Police Chief Richardson, Village officers Janice Powell, Kevin Franklin, Perry Peoples, and Tony Santos, and unnamed officers. Wright alleges that the defendants failed to respond to Jackson-Berry's complaints of domestic violence due to Berry's status as police chief; and that this led to an escalating pattern of violence which culminated in Jackson-Berry's death.
The defendants' motion to dismiss Wright's § 1983 claims against the Village (Count 2) and Powell, Franklin, Peoples, Richardson, Santos, and the unnamed officers (Count 6) and her § 1985 claims against Powell, Franklin, Peoples, Richardson, Santos, and the unnamed officers (Count 7), as well as their motion for a more definite statement, are before the court. For the following reasons, the defendants' motion to dismiss Count 6 is denied, their motion to dismiss Counts 2 and 7 is granted, and their motion for a more definite statement is denied. Count 2 is dismissed with prejudice as duplicative and Count 7 is dismissed without prejudice.
In various documents, Wright has referred to incorrect count numbers. For the purposes of this opinion, count numbers correspond to those in the Amended Complaint.
The court has addressed the remaining arguments raised in the motion to dismiss in a separate minute order, as Wright does not challenge the defendants' requests to dismiss her state law negligence claims against the Village and its officers or to strike her requests for punitive damages against these defendants.
I. Background
The following facts are drawn from the allegations in the complaint. Plaintiff Cora Wright is the administrator of Jackson-Berry's estate and the guardian and next fiend of Stephanie Jackson-Berry's four daughters, Alexis, Nastassia, and Tiffany Berry (from her relationship with Berry) and Bridget Jackson (from a previous relationship). Defendant Village of Phoenix is a duly constituted municipal corporation of the State of Illinois. Defendant Cooper Davis is the Village's police chief. Defendant Ronnie Berry was the Village's police chief until an unspecified point in 1996. Defendants Deputy Chief Richardson, Janice Powell, Kevin Franklin, Perry Peoples, and Tony Santos are Village police officers. Wright has sued Davis, Berry, and Richardson in their individual and official capacities and Powell, Franklin, Peoples, and Santos in their individual capacities.
Berry served as a Phoenix police officer, and later, as Chief of Police. At an unspecified point in 1996 (before Jackson-Berry's death on December 19, 1996), Berry stepped down as Chief of Police and Cooper Davis took over that position. According to Wright, for at least two years before her death, Jackson-Berry and her brother and daughters repeatedly sought assistance from the Village's police department. Wright also alleges that, on numerous occasions, the police saw Jackson-Berry's physical injuries and heard loud arguments emanating from the Berry home, which was located across an alley from the police station, but never responded to the requests for help, made written reports of the incidents, or arrested Berry.
Specifically, Wright alleges that, in May or June of 1994, Jackson-Berry's brother went to the Phoenix Police Department to file a complaint on her behalf; and that the officers refused to make a report or act on his complaint. In September of 1995, one of Jackson-Berry's daughters called the police while Berry was beating Jackson-Berry. When the officer arrived, however, Berry told him to "mind your own business," so the officer left without assisting Jackson-Berry or preparing a report. On a separate occasion in 1995, while Berry was Chief of Police, officers responded to a call for help from one of Jackson-Berry's daughters, but departed when Berry told them to leave or be fired.
In 1996, one of the Berry children ran to the Phoenix police station to report that Berry was physically and verbally abusing Jackson-Berry. Officers Janice Powell and Kevin Franklin went to the Berry home but then left after speaking with Berry at the door. Depute Chief Richardson, Perry Peoples, and Tony Santos also responded to calls reporting domestic violence or were aware that Berry was abusing Jackson-Berry but did not arrest Berry or intercede on Jackson-Berry's behalf
On December 19, 1996, Jackson-Berry experienced what turned out to be a final and fatal incidence of domestic violence: Berry hit her in the head with a handgun, dragged her to the basement, bound her with duct tape, covered her with a tarp, and shot her in the chest. Jackson-Berry died from asphyxiation and a gunshot wound.
Wright seeks relief under 42 U.S.C. § 1983 and 1985(3), as well as Illinois law. She claims that the Village of Phoenix failed to train its police officers about domestic violence and failed to respond to the complaints about Berry's abuse. She also asserts that the Village of Phoenix had a custom, policy, and practice of refusing to arrest police officers who committed crimes of domestic violence against their spouses or other women. Her twenty-three count complaint asserts the following claims:
Count Directed At Claim
1 Village of Phoenix due process of law — § 1983
2 Village of Phoenix failure to instruct, control and discipline — § 1983
3 Village of Phoenix, equal protection — § Berry, Davis, Franklin, 1983 Powell, Richardson, Santos, and unknown officers
4 Davis supervisory liability — § 1983
5 Berry supervisory liability — § 1983
6 Powell, Franklin, failure to intercede and Peoples, Richardson, prevent the violation of Santos, and unknown constitutional rights — officers § 1983
7 Berry, Davis, Powell, conspiracy to violate civil Franklin, Peoples, rights — §§ 1983 and Richardson, Santos, 1985(3) and unknown officers
While the complaint expressly seeks relief under § 1983, the court assumes that the conspiracy claim is pursuant to § 1985(3).
8 Berry Illinois Wrongful Death Act — negligence
9 Berry Illinois Survival Act — negligence
10 Berry Illinois Wrongful Death Act — willful and wanton conduct
11 Berry Illinois Survival Act — willful and wanton conduct
12 Village of Phoenix Illinois Wrongful Death Act — negligence
13 Village of Phoenix Illinois Survival Act — negligence
14 Village of Phoenix Illinois Wrongful Death Act — willful and wanton conduct
15 Village of Phoenix Illinois Survival Act — willful and wanton conduct
16 Davis Illinois Wrongful Death Act — negligence
17 Davis Illinois Survival Act — negligence
18 Davis Illinois Wrongful Death Act — willful and wanton conduct
19 Davis Illinois Survival Act — willful and wanton conduct
20 all police officer Illinois Wrongful Death Act defendants — negligence
21 all police officer Illinois Survival Act — defendants negligence
22 all police officer Illinois Wrongful Death Act defendants — willful and wanton conduct
23 all police officer Illinois Survival Act — defendants willful and wanton conduct
II. Discussion
The defendants ask the court to: (1) dismiss Wright's § 1983 claims against the Village of Phoenix based on its alleged failure to instruct, control and discipline its officers (Count 2) and her § 1983 claims against Powell, Franklin, Peoples, Richardson, Santos, and unknown officers based on their alleged failure to intercede (Count 6) because they fail to allege specific violations of Constitutional or federal law and fail to state a claim under the Due Process Clause of the Fourteenth Amendment; (2) dismiss her § 1985(3) claims against Berry, Davis, Powell, Franklin, Peoples, Richardson, Santos, and unknown officers (Count 8) and strike paragraphs 36 and 53(g), which contain related allegations for failure to state a claim; and (3) order Wright to provide a more definite statement by specifying the dates of the alleged reports of domestic violence listed in paragraphs 22, 23, 24, 25, 29, 20, 31, and 40. For the following reasons, the motion to dismiss Count 6 is denied, Count 2 is dismissed with prejudice as duplicative, Count 8 is dismissed without prejudice, and the motion for a more definite statement is denied.
A. Motion to Dismiss
1. Standard for a 12(b)(6) Motion to Dismiss
In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6), the court must assume the truth of all facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992); Gillman v. Burlington N.R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). Dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir. 1991), citing Hishon v. King Spalding, 467 U.S. 69, 73 (1984).
The court will accept all well-pled factual allegations in the complaint as true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2 (1977). In addition, the court will construe the complaint liberally and will view the allegations in the light most favorable to the non-moving party. Craigs, Inc. v. General Electric Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993). However, the court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992).
2. Counts 2 and 6 — The Village of Phoenix's Alleged Failure to Instruct, Control and Discipline its Officers and the Individual Officers' Failure to Intercede
The defendants assert that Count 2 (which alleges that the Village of Phoenix violated § 1983 by failing to instruct, control and discipline its officers) and Count 6 (which alleges that the Village's officers failed to intercede and protect Jackson-Berry from Berry) fail to state a claim for which relief may be granted. Specifically, they assert that these counts should be dismissed because they: (1) fail to allege specific violations of Constitutional or federal law; and (2) fail to state a claim under the Due Process Clause of the Fourteenth Amendment. They also contend that, if these counts state a cognizable constitutional claim, they are superfluous to Counts 1 (due process against the Village) and 3 (equal protection against the Village), which the defendants have answered.
Section 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution or laws of the United States." 42 U.S.C. § 1983; Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim under § 1983, a plaintiff must allege that the defendants: (1) invoked state authority or otherwise acted under color of state law; and (2) deprived her of a constitutionally protected right. See. e.g., Davis v. Union National Bank, 46 F.3d 24, 25 (7th Cir. 1994).
The burden of identifying a specific constitutional right flows from the fact that § 1983 "is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere." Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997). Thus, "the initial step in any § 1983 analysis is to identify the specific constitutional right which was allegedly violated." Id., citing Graham v. Connor, 490 U.S. 386, 394 (1989).
Wright asserts that the constitutional right at issue is the Due Process Clause of the Fourteenth Amendment, pointing to paragraphs 50 (in the complaint's general allegations) and 80 (in Count 6). Because Wright correctly notes that her complaint explicitly relies on the Due Process Clause, the defendants' motion to dismiss for failure to identify the basis of her constitutional claims is denied. With that said, the court turns to whether Wright has stated a claim under the Due Process Clause.
The court's analysis of this issue necessarily begins with the Supreme Court's decision in DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989), the seminal case addressing failure to protect claims under the Due Process Clause. According to the Seventh Circuit, DeShaney stands for the proposition that "a state's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause" because "[t]hat clause . . . imposes no duty on the state to provide members of the general public with adequate protective services. Rather, the Due Process Clause is a limitation on the states' power to act; it is not a minimum guarantee of certain levels of safety and security." Kitzman-Kelley v. Warner, No. 98-2139, 2000 WL 144337 *2 (7th Cir. Feb. 10, 2000).
If, however, the state has created a "special relationship" with the victimized individual, the state can have an affirmative duty to protect that individual. Id. The key question in this case is, therefore, whether Wright has adequately pleaded the existence of a "special relationship." There are two types of "special relationships." First, an "in custody" special relationship exists where "the state has some sort of control or custody over the individual, as in the case of prisoners, involuntarily committed mentally ill persons, or foster children. The state's duty to protect those persons or to provide services for them arises from that custody or control." Id., citing Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998), cert. denied, 120 S.Ct. 43 (1999).
The second type of "special relationship" exists where the state "affirmatively places a particular individual in a position of danger the individual would not otherwise have faced." Monfils v. Taylor, 165 F.3d at 516. The state-created danger exception flows from the fact that, although there is no constitutional right not to be murdered by a madman, there is a constitutional right not to be murdered by a state actor. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). Thus, "[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit." Id.
To the extent that Wright's due process claims are premised on an assertion that the police failed to protect Jackson-Berry from domestic violence in general, therefore, they must fail, as the due process clause does not require the state to shield citizens from each other. DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. at 195. Clearly, however, Wright's claims are not so limited. First, Wright claims that Berry, who was the Chief of Police during much of the abuse and who allegedly received special treatment due to this position even after he left the police force, assaulted Jackson-Berry with the defendants' knowledge and that the defendants affirmatively failed to act due to Berry's status in the police department. When the court construes these facts in the light most favorable to Wright, it must conclude that Wright is claiming that Jackson-Berry had a right to protection from a government actor rather than a more generalized right to protection from a private actor. See Monfils v. Taylor, 165 F.3d at 518 (due process clause protects citizens from the state, not from each other); see also Archie v. City of Racine, 847 F.2d 1211, 1222-23 (7th Cir. 1987) (en banc) (if one police officer beats a suspect without cause, the state has a duty, through other officers, to rescue the suspect); cf. Didzerekis v. Stewart, 41 F. Supp.2d 840, 846 (N.D. Ill. 1999) (rejecting due process claim brought by estate of woman murdered by her civilian husband due to lack of affirmative state action, as the state did not place the victim in a position of danger she would not have otherwise faced).
Second, Wright asserts that the police encouraged Berry by allowing him to use his status as a police officer as a shield. Specifically, Wright alleges that Berry successfully staved off his fellow officers by, among other things, telling them "they better leave or he would fire them." Amended Complaint at ¶ 29. At the motion to dismiss stage, the court construes this allegation as an assertion that the police took affirmative steps to enhance the danger by coming to the house and then leaving when Berry told them to do so, potentially lulling Berry into an enhanced sense of invulnerability. See Smith v. City of Elyria, 857 F. Supp. 1203, 1210 (N.D. Ohio 1994) (apparent authority given by the police to remain at a residence and continue domestic abuse can rise to the level of affirmative action sufficient to support a due process claim where actions taken by the police enhanced the danger). Wright's due process argument is, therefore, more expansive than a simple failure to act claim and thus states a claim for which relief may be granted.
This conclusion is supported by Sadrud-Din v. City of Chicago, 883 F. Supp. 270 (N.D. Ill. 1995), which addressed (among other things) a § 1983 due process claim brought by the estate of a domestic abuse victim killed by an off-duty police officer. The Sadrud-Din court denied the defendants' motion for summary judgment, stating that:
[T]he court finds that plaintiff has presented evidence which when considered in plaintiff's favor is sufficient to establish that a special relationship existed between the City and [Selena Johnson, the victim] because the City played a part in placing Selena in the position of danger which resulted in her murder. Plaintiff has presented evidence indicating that supervisory officers in the Chicago Police Department knew that Edward Johnson, a Chicago police officer — armed by the City's police department, given access to a squad car by the City's police department, conferred arrest power by the City's police department, and supervised by the City's police department — threatened the life of Selena Johnson and committed violent acts against her in violation of judicial orders of protection. Yet, the City did not apprehend or act in any way to deter Edward Johnson. By failing to arrest Edward on various occasions between May and September of 1988, knowing that he threatened Selena's life, and violated orders of protection, the court finds that viewing the evidence in a light most favorable to the plaintiff; the City had an affirmative duty to protect Selena under the Fourteenth Amendment. [citations omitted]. By allowing Edward Johnson to continue to carry his police-issued weapon knowing the information provided by Selena Johnson, the City affirmatively contributed to the circumstances which resulted in Edward Johnson murdering Selena Johnson with that weapon.Id. at 276.
Here, as in Sadrud-Din, Wright is claiming that Berry abused Jackson-Berry while wearing the mantle of a police officer, that her murder was traceable to his status as a state actor, and that other police officers knew of the threat to Jackson-Berry's life and affirmatively furthered that threat by failing to properly respond to the complaints of domestic violence against Jackson-Berry due to Berry's status in the police department. Accordingly, Counts 2 and 6 state a claim under the Due Process Clause. To the extent that Count 2 is a due process claim against the Village, it is duplicative of Count 1, which is also a due process claim against the Village. Hence, it is dismissed with prejudice as unnecessary. Count 6, however, is not duplicative and hence will not be dismissed.
3. Count 7 — § 1985(3)
The defendants contend that the § 1985(3) claims are deficient because: (1) they are barred by the intracorporate conspiracy doctrine; and (2) Wright has failed to allege that Jackson-Berry was a member of a specific protected class or that her membership in this class was the reason for the defendants' actions. For the following reasons, Wright's § 1985(3) claim is dismissed without prejudice.
In order to state a claim under § 1985(3), Wright must allege that "(1) two or more defendants conspired; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privilege and immunities under the laws; (3) one or more of the conspirators acted in furtherance of the conspiracy; and (4) such an act injured the person or his property or deprived him of exercising any right or privilege of a citizen of the United States." Munsion v. Friske, 754 F.2d 683, 694 (7th Cir. 1985).
The intercorporate conspiracy doctrine provides that a government entity cannot conspire with itself. See, e.g., Payton v. Rush-Presbyterian-St. Luke's Medical Center, 184 F.3d 623, 632 (7th Cir. 1999). First, it is unclear whether the doctrine applies to § 1983 claims of police misconduct. See Jefferson v. City of Harvey, 2000 WL 15097 at *4 (surveying cases).
Second, even if the doctrine does cover the type of misconduct at issue in this case, it is nevertheless inapplicable because it does not bar claims based on alleged personal bias. See Hartman v. Board of Trustees of Community College Dist. 508, Cook County, Ill., 4 F.3d 465, 470 (7th Cir. 1993); see also Payton v. Rush-Presbyterian-St. Luke's Medical Center, 184 F.3d at 633 n. 9. Reading the complaint generously, Wright appears to be alleging, among other things, that the defendants agreed not to respond to Jackson-Berry's domestic violence complaints because the alleged abuser, Berry, was a police officer. A reasonable inference from this allegation is that this agreement stemmed from personal, independent motives, such as a desire to protect fellow officers, which were unconnected to the Village's official police business. See Jefferson v. City of Harvey, 2000 WL 15097 at *4 (plaintiff who alleged that police failed to act because wrongdoer was the brother of a police officer survived motion to dismiss her § 1985(3) claim because these facts supported inference that the police were trying to protect their relatives and hence were not acting within the scope of their employment). Because Wright's § 1985(3) claims do not necessarily stem from acts taken within the scope of the defendants' employment, the intracorporate conspiracy doctrine does not require dismissal of these claims.
The § 1985(3) claims, however, suffer from more fundamental defects. Conclusory allegations of a conspiracy are not enough to stave off a motion to dismiss. See Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). In her amended complaint. Wright claims that Phoenix police officers conspired to ignore both her calls for help and domestic violence complaints made by spouses of Phoenix police officers and other women. See Amended Complaint, Count 7 and ¶¶ 36 and 53(g). The complaint, however, does not provide any specifics regarding the purported conspiracy. Instead, it baldly states that a conspiracy existed.
Moreover, claims brought pursuant to § 1985(3) must be predicated on "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-69 (1993). The term class-based discriminatory animus "connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors." Bray v. Alexandria Women's Health Clinic, 506 U.S. at 269. Thus, the class cannot be defined entirely by the defendants' actions. See id.; see also Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, (7th Cir. 1985) (rejecting class comprised of people parked on Chicago's north side whose cars were towed without cause by Lincoln Towing and who were harassed by Lincoln Towing as a result); Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976) (rejecting class comprised of persons whose homes were raided by police on a particular night); Rideau v. Jefferson County, 899 F. Supp. 298, 302 (E.D. Tex. 1995) (rejecting class comprised of women seeking protection from domestic violence perpetrated by spouses who are also deputy sheriffs).
To assert the necessary class-based animus, a plaintiff "must be able to identify a class with common characteristics that raises the inference that they might be protected under section 1985(3)." Bowman v. City of Franklin, 980 F.2d 1104, 1109 (7th Cir. 1992); Evans v. Torres, No. 94 C 1078, 1999 WL 1010983 (N.D. Ill. Sept. 30, 1999). The defendants correctly note that the complaint does not specify what class is at issue and that the allegations in the complaint support a number of possible classes, such as women generally, any victim of domestic violence, female victims of domestic violence, spouses of police officers, female spouses of police officers, and female spouses of police officers who are victims of domestic violence. Because the court cannot determine whether Wright has alleged a legitimate class-based animus and her conspiracy allegations are conclusory, her § 1985(3) claim must fail.
B. Motion for a More Definite Statement
The defendants have also moved for a more definite statement under Fed.R.Civ.P. 12(e), which provides, in pertinent part, that "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. . . ." According to the defendants, Wright's failure to provide dates for the alleged reports of domestic abuse alleged in paragraphs 22, 23, 24, 25, 29, 30, 31, 40 means that they cannot formulate a meaningful response to these portions of the complaint.
In response, Wright contends that the defendants are in the best position to ascertain this information since they kept records of police reports. She also notes that, in discovery, the Village has stated that it "cannot locate any police logs whatsoever from 1995 and has provided only a scant few police logs from 1994 and 1996." Lu reply, the defendants acknowledge that they have been unable to locate police reports relating to Jackson-Berry, but theorize that this could be because the claimed requests for assistance were not made. They also note that specific dates would help them zero in on any relevant documents and obviate the need to review several years of police reports.
A motion for a more definite statement under Rule 12(e) is appropriate only when the defendant cannot understand the gravamen of the plaintiff's complaint. Kyle v. Morton High School, 144 F.3d 448, 457 (7th Cir. 1998). Moreover, motions under Rule 12(e) are disfavored and are appropriate only when "the pleading is sufficiently intelligible for the court to make out one or more potentially viable theories on which the claimant might proceed," but is "so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself." Dimensions Medical Center, Ltd. v. Principal Financial Group, Ltd., No. 93 C 6264, 1995 WL 51586 *3 (N.D. Ill. Feb. 6, 1995), quoting 5A Charles A. Wright Arthur Miller, Federal Practice and Procedure § 1376 (1990).
It is also important to note that the federal rules require clarity, not detail. Fed.R.Civ.P. 8. Thus, a plaintiff may file "relatively skeletal pleadings" and await the unearthing of the underlying facts in discovery. 5A Charles A. Wright Arthur Miller, Federal Practice and Procedure § 1376 (1990).
Here, the defendants are claiming that they need dates to help them formulate a defense, not that the claims raised in the complaint are unclear. A Rule 12(e) motion, however, is not a substitute for discovery. See id. If the defendants are dissatisfied with Wright's responses to their written discovery, they must proceed under the discovery rules rather than Rule 12 (f). See Antonelli v. Askew, No. 95 C 3007, 1996 WL 13177 *3 (N.D. Ill. Mar. 21, 1996) (civil rights complaint based on alleged police misconduct in May of 1994 was sufficiently specific). Moreover, "it is entirely inappropriate to require a plaintiff to state his claim with great particularity simply on the off chance that defendant might be able to unearth a dispositive threshold defense." 5A Charles A. Wright Arthur Miller, Federal Practice and Procedure at § 1376
The court also notes that the unique facts of this case make a Rule 12(e) motion especially unhelpful. Lu most cases, the plaintiff is the person most likely to know the kind of details sought by the defendants and requiring supplementation via Rule 12(e) will not present an insurmountable problem. Here, however, Jackson-Berry, not Wright, would have been in the best position to clarify the dates on which the claimed abuse occurred. Since she cannot do so, the parties will have to resolve this issue in discovery. Accordingly, the motion for a more definite statement is denied.
III. Conclusion
The defendants' motion to dismiss [41-1] is granted in part and denied in part. Specifically, the defendants' motion to dismiss Count 6 is denied, Count 2 is dismissed with prejudice as duplicative and Count 7 is dismissed without prejudice. Wright may file an amended complaint amending Count 7, consistent with this order and counsel's Rule 11 obligations, by March 3, 2000. Failure to do so will cause the dismissal without prejudice to convert to a dismissal with prejudice. Finally, the defendants' motion for a more definite statement [42-1] is denied.