United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 6, 2007

Decided November 10, 2008

Before

RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 06-3296

WILLIAM O. ATKINS, Appeal from the United States

Plaintiff-Appellee, District Court for the

and Northern District of Illinois,

Eastern Division.

ADAM ATKINS,

 Plaintiff,

No. 05 C 6109

v.

COUNSELOR ANDREA PICKARD, Milton I. Shader,

GERALD REESE, SAMUEL NANCE, Judge.

and WARDEN DEIRDRE BATTAGLIA,

 Defendants-Appellants,

and

CITY OF CHICAGO et al.,

Defendants.

O R D E R

In an opinion issued today (our appeal number 07-2757) we reversed the district court’s

order dismissing this case. In summarizing the facts, we wrote:

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 06-3296 2

 In October 2003 Chicago police stopped a car driven by Adam

Atkins. His brother William Atkins was a passenger. The police

released Adam but arrested William on the basis of a paroleviolation warrant bearing his name and his Illinois Department

of Corrections identification number. He was held at the police

station overnight and then transferred to the custody of the

Department of Corrections, which placed him in the state prison

at Joliet. From the moment of his arrest William Atkins

steadfastly denied that he was the William Atkins named in the

warrant. He was released from the Department’s custody after

37 days. He brought this suit against the arresting officers, prison

guards, and others, mainly contending that the Department lacks

proper procedures for determining mistaken identification, but also

claiming that his arrest was illegal and that he was mistreated

while at Joliet.

Unfortunately, Mr. Atkins died during the proceedings in the district court. 

Subsequently, the district court dismissed the case because a proper party--Mr. Atkins’ widow,

Brandie Atkins--was not timely substituted as the plaintiff. That order was reversed in our

opinion today.

Now back to the complaint which was filed in 2005. In answering Atkins’ complaint,

the state defendants asserted, among other things, the affirmative defense of qualified immunity. 

Ordinarily, that defense is addressed when (and if) defendants move for summary judgment. But

that wasn’t what happened here. Instead, Atkins filed a motion to strike the qualified immunity

defense from the defendants’ answer. Atkins’ motion was granted, the defense was stricken, and

the state defendants took an appeal from the district court’s order (our appeal number 06-3296,

the subject of this order).

On April 6, 2007, after Mr. Atkins had passed away and before Brandie Atkins was

inserted into his shoes to continue the case, we heard oral arguments on the State’s appeal of

the order striking its qualified immunity affirmative defense from the complaint. We think the

district court jumped the gun and committed error in issuing that order. The order was based

on a slim “motion to strike” under Rule 12(f), a rule aimed at a pleading that contains “an

insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” The rule

is not a good fit for resolving issues like qualified immunity which often turn on facts yet to be

developed. Accordingly, the order is REVERSED and the case REMANDED for further

proceedings, now with Brandie Atkins at the controls.