IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

Michael Whitted ) Case No: 12 C 2461

)

v. )

) Judge Amy J. St. Eve

Cook County Sheriff’s Office et al )

)

)

ORDER

The Court denies Defendants' motions to dismiss [60][64]. The Court grants Plaintiff

leave to amend his allegations to include Defendant Cook County Sheriff Thomas Dart as a

Defendant to this lawsuit. See Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). Plaintiff’s Fourth Amended Complaint is due on or before September 16,

2013. 

STATEMENT

On June 1, 2013, Plaintiff Michael Whitted filed the present Third Amended Complaint

alleging a Fourth Amendment search and seizure claim, a Fourteenth Amendment substantive

due process claim, and claim pursuant to Monell v. Department of Social Servs., 436 U.S. 658,

694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against Defendant Cook County Sheriff’s Office

(“Sheriff’s Office”) and the County of Cook (“Cook County”).1 Before the Court are Cook

County’s and the Sheriff’s Office’s motions to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). For the following reasons, the Court denies Defendants’ motions. The

Court, in its discretion, grants Whitted leave to amend his allegations to include Defendant Cook

County Sheriff Thomas Dart as a Defendant to this lawsuit. See Fed.R.Civ.P. 15(a)(2) (“The

court should freely give leave when justice so requires.”). Whitted’s Fourth Amended

Complaint is due on or before September 16, 2013. 

LEGAL STANDARD

“A 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

1

 Cook County is a Defendant to this lawsuit because it is an indispensable party due to

Illinois law requiring the County to pay judgments entered against a sheriff’s office in its official

capacity. See Askew v. Sheriff of Cook County, 568 F.3d 632, 636 (7th Cir. 2009); Carver v.

Sheriff of LaSalle County, 324 F.3d 947, 948 (7th Cir. 2003); 55 ILCS 5/5-1002. 
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 Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007) (citation

omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put

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, 129 S. Ct. 1937,

1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). “In evaluating the

sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as

true all well-pleaded factual allegations and making all possible inferences from the allegations

in the plaintiff’s favor.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). A

plaintiff may plead himself out of court by alleging facts showing that he has no legal claim. See

Peterson v. McGladrey & Pullen, LLP, 676 F.3d 594, 600 (7th Cir. 2012); Atkins v. City of

Chicago, 631 F.3d 823, 832 (7th Cir. 2011).

PROCEDURAL BACKGROUND

On August 27, 2012, the Court granted in part and denied in part Defendants’ Rule

12(b)(6) motion to dismiss Whitted’s nine-count Complaint. In particular, the Court dismissed

Whitted’s state law claims with prejudice due to the Illinois Local Government and

Governmental Employees Tort Immunity Act. The Court also dismissed Defendant Cook

County Juvenile Detention Center as a Defendant to this lawsuit because it did not have a

separate legal existence from the Circuit Court of Cook County. Further, the Court granted

Defendants’ motion as to Whitted’s constitutional claims, but also granted Whitted leave to

amend these claims.

On May 3, 2013, the Court granted Defendant Sheriff’s Deputies’ Rule 12(b)(6) motion

to dismiss the Second Amended Complaint because Whitted had failed to identify the individual

Defendant Sheriff’s Deputies within the applicable limitations period. Further, the Court

concluded that equitable tolling did not apply under the circumstances because Whitted had not

diligently pursued the identities of the Sheriff’s Deputies and had not established that

extraordinary circumstances stood in his way.

ANALYSIS

In the present motions to dismiss, Defendants argue that because the Cook County

Sheriff’s Office it is not a separate legal entity, Whitted has pleaded himself out of court for

failing to name the proper Defendant. Indeed, the proper Defendant should be the Cook County

Sheriff, Thomas Dart. See Halsey v. Cook County Dep’t of Corr., No. 13 C 5975, 2013 WL

4674876, at *1 (N.D. Ill. Aug. 30, 2013) (citing Castillo v. Cook County Mail Room Dep’t, 990

F.2d 304, 307 (7th Cir. 1993); Leaks v. Dart, No. 13 C 1262, 2013 WL 2285841, at *1 (N.D. Ill.

May 22, 2013). 

Nevertheless, throughout this lawsuit, the Court and the parties have relied upon

Whitted’s assertions and allegations against Sheriff Dart in his official capacity. Moreover, 

Sheriff Dart has been on notice of this lawsuit since Whitted filed his original Complaint as
evidenced by the multiple motions to dismiss brought by the Cook County Sheriff’s Office’s

counsel, namely, the Cook County State’s Attorney’s Office. Accordingly, the Court will not

dismiss this lawsuit based on the parties’ oversight as to the proper, suable Defendant to this

lawsuit. The Court, in its discretion, grants Whitted leave to amend his allegations to include

Defendant Cook County Sheriff Thomas Dart as a Defendant to this lawsuit. See Fed.R.Civ.P.

15(a)(2) (“The court should freely give leave when justice so requires.”).

Date: September 10, 2013 

AMY J. ST. EVE

United States District Court Judge