Opinion
No. 00-1203
February 5, 2001
REPORT AND RECOMMENDATION
This cause is before the Court on Defendant Stacy Conner's Motion to Dismiss Count II of Plaintiff's Amended Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) and on Defendants Jennifer Beckman's, Amanda Chalus', and Douglas Hopwood's Motion to Dismiss Count II of Plaintiff's Amended Complaint pursuant to Rule 12(b)(6).
I. BACKGROUND
On June 2, 2000, Plaintiff filed a two Count Complaint against Defendants. Count I alleged a cause of action pursuant to 42 U.S.C. § 1983; Count II alleged a cause of action pursuant to the Illinois Wrongful Death Act. 740 ILCS 180/1.
On July 31, 2000, Defendant Stacy Conner filed a motion to dismiss Count II of Plaintiff's Complaint, arguing that she was protected from liability on Count II pursuant to the doctrine of sovereign immunity ( 705 ILCS 505/8) and/or the common law doctrine of public official immunity. On September 12, 2000, this Court issued a Report and Recommendation recommending to the district court that it allow Defendant Conner's motion to dismiss. On September 25, 2000, the remaining Defendants, likewise, filed a motion to dismiss Count II based upon the doctrine of public official immunity.
On October 26, 2000, the district court adopted this Court's Report and Recommendation and granted Defendant Conner's motion to dismiss Count II of Plaintiff's Complaint. In that same order, the district court also granted the remaining Defendants' motion to dismiss Count II. However, the district court also adopted this Court's recommendation that Plaintiff be given leave to amend his Complaint. Specifically, the district court gave Plaintiff leave "to allege how the defendants acted willfully and wantonly, outside the scope of their employment, illegally, and/or unconstitutionally."
On November 20, 2000, Plaintiff filed his First Am ended Complaint. In his Amended Complaint, Plaintiff added a Third Count, pursuant to 42 U.S.C. § 1983, and attempted to correct the deficiencies noted by this Court and the district court regarding Count II of his original Complaint. On December 7, 2000, Defendant Conner filed a motion to dismiss Count II of Plaintiff's First Amended Complaint arguing that, despite Plaintiff's new allegations, she is still protected from liability on Count II based upon the doctrines of sovereign immunity and public official immunity. On December 11, 2000, the remaining Defendants filed a motion joining Defendant Conner's motion to dismiss Count II. Plaintiff has now filed his response to Defendants' motions to dismiss, and therefore, the motions are ripe for adjudication.
Defendants Beckman, Chalus, and Hopwood joined only that part of Defendant Conner's motion to dismiss which referred to the doctrine of public official immunity.
II. ANALYSIS
Both this Court and the district court have previously recited the standards governing a motion to dismiss and the relevant facts as alleged by Plaintiff. Therefore, the Court need not repeat them here. However, to the extent that Plaintiff has alleged new or different facts in his First Amended Complaint, the Court will address them in ruling upon Defendants' motions to dismiss.
A. PUBLIC OFFICIAL IMMUNITY
Initially, the Court notes that it was error for Defendants Beckman, Chalus, and Hopwood to wholly adopt Defendant Conner's memorandum of law in support of their motion to dismiss Count II. Defendant Conner is a State employee, and as such, she has relied upon the common law doctrine of public official immunity in support of her motion to dismiss.
On the other hand, Defendants Beckman, Chalus, and Hopwood are employees of the City of Peoria. Therefore, the common law doctrine of public official immunity does not apply to them because "[t]he public official immunity doctrine protects only State employees. It has no applicability in the instant case because the defendants are employees of the [city], not the State." Michigan Ave. Nat'l Bank v. County of Cook, 306 Ill. App.3d 392, 406, 714 N.E.2d 1010, 1020, 239 Ill. Dec. 713, 723 (Ill.App.Ct. 1999). As the Illinois Supreme Court has explained:
public official immunity is a common law defense to liability for employees of the State of Illinois, where those employees engage in discretionary functions. This concept is inapposite to the matter at bar, where defendants, a local public entity and its public employees, are specifically immunized pursuant to the Tort Immunity Act. Indeed, this court has previously rejected attempts to incorporate the common law discretionary/ministerial distinction into provisions of the Tort Immunity Act. As discussed above, courts must not read conditions into the Tort Immunity Act that conflict with its plain meaning.
Michigan Ave. Nat'l Bank v. County of Cook, 191 Ill.2d 493, 521, 732 N.E.2d 528, 543-44, 247 Ill. Dec. 473, 488-89 (Ill. 2000) (internal citations omitted).
1. Defendant Conner
As stated supra, Defendant Conner argues that she is immune from liability on Count II based upon the doctrine of public official immunity. The Court disagrees.
The Illinois Supreme Court has explained:
The common law doctrine of public officials' immunity dictates that public officials are immune from personal liability for their performance of discretionary duties. The doctrine is premised upon the principle that a public decisionmaker should not be subject to personal liability where he makes a decision based upon his perception of the public needs. The immunity attaches only to conduct by a public official that is discretionary, rather than ministerial, in nature. Further, it is well established that public officials' immunity does not apply to every discretionary act by an official but rather only to those acts which are unique to the particular public office.
Currie v. Lao, 148 Ill.2d 151, 166-67, 592 N.E.2d 977, 983-84, 170 Ill. Dec. 297, 303-04 (Ill. 1992) (internal citations omitted). "Thus, the critical question is whether defendants' conduct in treating plaintiff was ministerial or discretionary." Janes v. Albergo, 254 Ill. App.3d 951, 967, 626 N.E.2d 1127, 1138, 193 Ill. Dec. 576, 587 (Ill.App.Ct. 1993), citing Midamerica Trust Co. v. Moffatt, 158 Ill. App.3d 372, 376, 511 N.E.2d 964, 967, 110 Ill. Dec. 787, 790 (Ill.App.Ct. 1987).
"Discretionary acts are those that require personal deliberation, decision and judgment. . . ." Board of Trustees of Community College, Dist. No. 508, County of Cook v. Coopers and Lybrand LLP, 296 Ill. App.3d 538, 544, 696 N.E.2d 3, 8, 231 Ill. Dec. 274, 279 (Ill.App.Ct. 1998). On the other hand, ministerial acts are those which an employee "performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own discretion upon the propriety of the act being done." Larson v. Darnell, 113 Ill. App.3d 975, 977, 448 N.E.2d 249, 250-51 69 Ill. Dec. 789, 790-91 (Ill.App.Ct. 1983).
Finally, "[i]n determining whether an act is discretionary for public official immunity purposes, the act, in addition to involving skill or judgment, must be governmental in character." Janes, 254 Ill. App.3d at 967, 626 N.E.2d at 1138, 193 Ill. Dec. at 587.
In the instant case, taking all reasonable inferences in a light most favorable to Plaintiff, the Court believes that Defendant Conner's actions as set forth in the Complaint were ministerial rather than discretionary. Plaintiff has attached to his Complaint a copy of the Illinois State Police's policy regarding the use of oleoresin capsicum aerosol irritant, a/k/a pepper spray or pepper mace. That policy statement directs Illinois State Troopers to take an individual to an emergency room, regardless of the circumstances, for treatment when he or she has discharged pepper spray directly into the eyes or face of that individual at very close range. The policy statement also directs Illinois State Troopers to give "special attention" to "subjects who run from officers, or violently resist restraint or try to assault officers."
The Court may consider the policy statement attached to the Amended Complaint without converting Defendant's motion into one for summary judgment or a motion for judgment on the pleadings because "[d]istrict courts may look to exhibits attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6)." Marshall-Mosby v. Corporate Receivables, Inc., 194 F.3d 830, 835 (7th Cir. 1999), rev'd on other grounds, 205 F.3d 323 (2000); Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988).
The existence of this policy removes any discretion which Defendant Conner might have possessed in determining whether Decedent needed medical attention or whether she should monitor him. See Id. at 969, 626 N.E.2d at 1139, 193 Ill. Dec. at 588 (holding that public official immunity did not apply because the breaches alleged by the plaintiff against the defendants were premised on their failure to perform in accordance with a hospital policy); see also Campbell v. White, 207 Ill. App.3d 541, 555, 566 N.E.2d 47, 56, 152 Ill. Dec. 519, 528 (Ill.App.Ct. 1991) (noting in dicta that "[i]f the directive gives defendant the discretion to determine whether to use the flashing lights, then what plaintiffs really want to accomplish is to change the policy of the Illinois State Police regarding use of flashing lights in pursuit. If, as plaintiffs suggest, defendant had no discretion and was required by law to activate his oscillating lights and siren, the public-official immunity could not be invoked on his behalf."). Accordingly, because Defendant Conner's actions, as alleged in Plaintiff's First Amended Complaint, were ministerial in nature, the Court does not believe that she is protected from liability on Count II based upon the doctrine of public official immunity, and the Court recommends that her motion to dismiss be denied.
Plaintiff alleged both that Defendants sprayed Decedent in the face at close range with the pepper spray and that Decedent ran from Defendants and violently resisted arrest prior to being sprayed with the pepper spray.
2. Defendants Beckman, Chalus, Hopwood
Likewise, the Court does not believe that Defendants Beckman, Chalus, and Hopwood are protected from liability on Count II of Plaintiff's First Amended Complaint based upon Illinois' Local Government and Governmental Employees Tort Immunity Act. 745 ILCS 10/2-201 et seq. "Section 2-201 codifies the 'discretionary immunity doctrine', which is all that survives of sovereign immunity after the abolition of such immunity for torts by the Illinois Legislature." Torres v. City of Chicago, 123 F. Supp.2d 1130, 1133 (N.D.Ill. 2000). Specifically, the statute provides: "Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201. However, the Illinois Supreme Court has held that 745 ILCS 10/2-201 only immunizes a public employee if his alleged wrongful act or omission was both a determination of policy and an exercise of discretion.
Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 341, 692 N.E.2d 1177, 1181, 230 Ill. Dec. 11, 15 (Ill. 1998); Torres, 123 F. Supp.2d at 1133; Arteman v. Clinton Community Unit Sch. Dist. No. 15, 317 Ill. App.3d 453, 740 N.E.2d 47, 51, 251 Ill. Dec. 217 (Ill.App.Ct. 2000); Wrobel v. City of Chicago, 2000 W L 1877546, * 3 (Ill.App.Ct. Dec. 27, 2000).
In the present case, the Court does not believe that Defendants Beckman, Chalus, or Hopwood determined any policy in any of their actions alleged by Plaintiff in his First Amended Complaint. Defendants have failed to cite any policy which they determined, and the Court must take all inferences in favor of Plaintiff on a motion to dismiss. Therefore, the Court does not believe that Defendants Beckman, Chalus, and Hopwood are protected from liability on Count II of Plaintiff's First Amended Complaint based upon 745 ILCS 10/2-201.
Furthermore, although not specifically raised by Defendants Beckman, Chalus, and Hopwood, the Court does not believe that they are protected from liability on Count II based upon 745 ILCS 10/2-202. Illinois courts have explained that
Title 745 ILCS 10/2-202 provides: "A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct."
[t]he immunity conferred by section 2-202 is a limited immunity, and its dimensions are narrower than the scope of a police officer's employment or the performance of his official duties and functions. Not every act or omission by a police officer while on duty is immunized. Instead, a police officer is granted immunity only where he is negligent while actually engaged in the enforcement or execution of a law.
Carter v. DuPage County Sheriff, 304 Ill. App.3d 443, 452, 710 N.E.2d 1263, 1268, 238 Ill. Dec. 161, 167 (Ill.App.Ct. 1999) (internal citations omitted). Moreover,
[w]illful and wanton conduct is a statutory exception that defeats the immunity provided by section 2-202 of the Tort Immunity Act. Section 2-202 states that a "public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." The Act defines willful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." Willful and wanton conduct consists of more than mere inadvertence, incompetence, or unskillfulness. While the question of whether conduct is "willful and wanton" is ultimately a question of fact for the jury, the court must first determine as a matter of law whether the plaintiff has alleged sufficient facts such that a jury question concerning the willful and wanton nature of the defendants' conduct is created.
Moran v. City of Chicago, 286 Ill. App.3d 746, 755, 676 N.E.2d 1316, 1323, 222 Ill. Dec. 112, 119 (Ill.App.Ct. 1997) (internal citations omitted); Youker v. Schoenenberger, 22 F.3d 163, 168 (7th Cir. 1994).
In the case subjudice, the Court believes that Plaintiff has adequately alleged that Defendants' conduct was willful and wanton. In essence, Plaintiff has alleged that Defendants knew that Decedent was in serious need of medical attention but failed to seek medical help or even attempted to verify his well being for nearly ten minutes. In short, the Court cannot say (based upon these allegations and especially in light of the fact that whether actions are willful and wanton is generally a jury question) that it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Torres, 123 F. Supp.2d at 1133 (holding that the police officers' delay in summoning medical attention for a gunshot victim for more than an hour and a half constituted willful and wanton conduct); c.f. Alto v. City of Chicago, 863 F. Supp. 658, 664 (N.D.Ill. 1994) (noting that "[s]uch claims against police officers are not generally suitable for resolution at the summary judgment phase. . . ."). Accordingly, the Court recommends that Defendant Beckman's, Chalus', and Hopwood's motion to dismiss be denied.
B. SOVEREIGN IMMUNITY
Defendant Conner also argues that Count II of Plaintiff's Complaint should be dismissed against her because Count II is barred by the doctrine of sovereign immunity. Defendant Conner contends that Count II is, in reality, a suit against the State of Illinois; as such, she asserts that Plaintiff can only maintain his wrongful death claim in the Illinois Court of Claims. 705 ILCS 505/8. Accordingly, Defendant Conner asks the Court to dismiss Count II against her based upon the doctrine of sovereign immunity. Id.
The Court believes that the exception to the Illinois Court of Claim s Act's exclusivity doctrine applies in this case. Healy v. Vaupel, 133 Ill.2d 295, 308, 549 N.E.2d 1240, 1247, 140 Ill. Dec. 368, 375 (Ill. 1990), citing Senn Park Nursing Ctr. v. Miller, 104 Ill.2d 169, 188-89, 470 N.E.2d 1029, 1039, 83 Ill. Dec. 609, 619 (Ill. 1984). As the Seventh Circuit has explained:
Illinois follows the federal practice by making an exception for situations in which the public employee did not act within the scope of his employment or violated the Constitution. . . . [I]n Illinois: "Whenever a state employee performs illegally, unconstitutionally, or without authority, a suit may still be maintained against the employee in his individual capacity and does not constitute an action against the State of Illinois."
Feldman v. Ho, 171 F.3d 494, 498 (7th Cir. 1999), quoting Wozniak v. Conry, 288 Ill. App.3d 129, 134, 679 N.E.2d 1255, 1259, 223 Ill. Dec. 482, 486 (Ill.App.Ct. 1997).
Here, Plaintiff has alleged in Count I of his First Amended Complaint that Defendant Conner violated Decedent's Fourth Amendment right to be free from an unreasonable search and seizure, i.e., Defendant Conner used excessive force in effecting Decedent's arrest. As such, the Court believes that Plaintiff has successfully brought his claim under the exception to the Illinois Court of Claims Act's exclusivity doctrine because he has alleged that Defendant Conner acted unconstitutionally. See Chavez v. Illinois State Police, 27 F. Supp.2d 1053, 1082-83 (N.D.Ill. 1998) (finding that the exception to the Illinois Court of Claims Act's exclusivity doctrine applied where the plaintiff alleged in a separate § 1983 count of his complaint that the defendant acted unconstitutionally); see also Rooding v. Peters, 864 F. Supp. 732, 740 (N.D.Ill. 1994) (denying the defendant's motion to dismiss based upon the exclusivity doctrine where the plaintiff included a § 1983 count alleging that the defendant violated his constitutional rights). Thus, the Court believes that Plaintiff's action is not one against the State of Illinois and that the doctrine of sovereign immunity does not apply. Accordingly, the Court believes that Defendant Conner is not protected from liability on Count II based upon the doctrine of sovereign immunity, and the Court recommends that her motion to dismiss be denied.
Wherefore, the Court RECOMMENDS that Defendant Stacy Conner's Motion to Dismiss Count II of Plaintiff's Amended Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) (d/e 38) and Defendants Jennifer Beckman's, Amanda Chalus', and Douglas Hopwood's Motion to Dismiss Count II of Plaintiff's Amended Complaint pursuant to Rule 12(b)(6) (d/e 41) be DENIED.
The Court also RECOMMENDS that Plaintiff's Motion for Leave to File Second Complaint and to Join the City of Peoria and Its Chief of Police as Defendants (d/e 43) be ALLOW ED after the district court has ruled upon Defendants' objections to this Report and Recommendation, if any, or after the time for filing any objections has expired.
Finally, the parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.