Opinion
No. 03 C 3841
October 31, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action alleging that defendants discriminated against her for over eight years because of her refusal to contribute or raise money on behalf of defendant Citizens for Sheahan. Defendant Cook County filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) arguing that plaintiff failed to state a claim against it. That motion is denied.
In deciding a Rule 12(b)(6) motion to dismiss we must assume the truth of all well — pleaded allegations, making all inferences in the plaintiffs favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund. 25 F.3d 417, 420 (7th Cir. 1994). The court should dismiss a claim only if It appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957). While the complaint does not need to provide the correct legal theory to withstand a Rule 12(b)(6) motion, it must allege all of the elements necessary to recover. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047 (1986).
The county argues that it cannot be held accountable for the alleged conduct of the sheriff and his deputies because the sheriff is an independently — elected officer and answers only to the electorate, not the county. See Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989), cert. denied, 495 U.S. 929 (1990). The county claims that plaintiff's complaint fails to state a claim because it attempts to impose such vicarious liability.
In Illinois, the county is a necessary party in any suit seeking damages against an independently — elected county officer such as the sheriff. Carver v. Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003), citing, Carver v. Sheriff of LaSalle County, 787 N.E.2d 127, 141, 272 DJ. Dec. 312, 203111.2d 497 (Ill. 2003). Because state law requires the county to pay if a plaintiff is successful in such a suit, the county must be named as a defendant so that it may veto potential settlements proposed at its expense. Id. Even though defendant county is correct in asserting that plaintiff falls to state the correct legal theory against it, it must remain a party to this action. See Ellsworth, 774 F.2d at 184. The county's obligation to pay requires, of course, a determination of liability by the sheriff, and the claims against him remain the subject of his motion to dismiss. That motion has not been decided.
CONCLUSION
For the foregoing reasons, defendant Cook County's motion to dismiss is denied.