# U n i ted S ta tes C o u rt o f A pp ea ls F orth e Se ve nt h Ci r c uit Chicago, Illin ois 60604 Argued Apr il 6, 2007 Dec ided Novembe r 10, 2008

Before RI CHARD A. POSNER, Circuit Judge J OEL M. FLAUM, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 06-3296 WI L L I AM O. ATKI

NS, Appea l from the United States Plaintif f-Appellee , District Court for the and No rt he rn Di str ic t of

I lli no is, Easter n Division. AD AM AT KI

NS, Plain tif

f, No. 05 C 6109 v. COUNSEL OR ANDREA PI CKARD, Milton I . Shader, GERAL D REESE, SAMUELNANCE, Judge

. and WARDEN DEI RDRE BATTA GL I A,

De fe nd an ts- Ap pe lla nts , and CI TY OF CHI CAGO et a l.,

De fe nd an ts

. O R D E R I n an opinion issued today (our a ppeal number

07-2757) we reve rsed the district c ourt’s order dismiss ing this ca se. In summarizing the fa cts, we wrote:

NONPR EC ED ENT IA L DI SPO SIT ION To be c ite d on ly in ac c or d anc e w ith Fe d . R . A p p . P. 32.1No. 06-3296 2

I n October

2003 Chicag o police stopped a car driven by

Adam Atkins. His brother Willi am Atkins was a pa sseng er. The police rele ased A dam but arr ested Willi am on the basis of a parole

violation warra

nt bear ing his name and his I llinois Depa rtment of Corre ctions identification number. H e wa s held at the police station overnig ht and then tra nsfer red to the c ustody

of the Depa rtment of Corre ctions, which plac ed him in the state prison at J oliet. From the moment of his a rre st W illiam Atkins steadfa stly

denied that he was the William Atkins named in the war rant. He was re lease d from the De partment’s c ustody afte r 37 day s. He broug ht this sui t ag ainst the arr esting office rs, prison g uards, a nd others, mainly

contendingthat the Depa rtment lacks pr op e r p ro c e dure s f

or de te rm ini ngmis take n id e nti fi c a tio n, but a lso claiming that his arre st was illeg al and that he was mistreated wh ile a t Jolie t. Unfortunately , Mr. Atkins died duringthe proc eeding s in the district court. Subsequently , the district court dismissed the ca se bec ause a proper party --Mr. A tkins’ widow, Br andie Atkins-- was not timely substitut ed as the plaintiff. That orde r wa s reve rsed in our o p i n i o nt o d ay. No w b a c k to the c omp la int wh ic h w a s f

ile d in 20 05 . In a

ns we ri ngAtkin s’ c omp la int , the state de fenda

nts asserted, a

mong othe r thing s, the aff irmative def

ense of qualified immunity

. Ordinar ily , that defe nse is addre ssed when ( and if) de fenda nts move for summary

judgme nt. But that w a sn ’t

wh a t ha pp e ne d h e re . Ins te a d, Atkin s f ile d a mot ion to s tr ike the qu a lif

ie d im mun ity defe nse fr om the defe ndants’ answ er. A tkins’ motion was gr anted, the de fense was stricke n, and the state de fenda

nts took an appea l from the district cour t’s order (our a ppeal number

06-3296, the subject of this orde r). On April 6, 2007, af

ter Mr. A tkins had passed a way and bef ore B randie Atkins was inserted into his shoes to continue the c ase, w e hea rd ora l arguments on the State’s appe al of the orde r striking its qualified immunit y aff irmative def

ense f rom the complaint. We think the district court jumped the gun and committed er ror in issuing that order. T he orde r wa s based on a slim “motion to st rike” under Rule 12( f), a rule a imed at a plea ding that contains “a n ins uf fi c ie nt d e fe ns e or

any re dund ant, imm a te ri a l, i mpe rt ine nt o r s c and a lou s matte r. ” Th e ru le is not a g ood fit for re solving issues like qualifie d immunit y which ofte n turn on fac ts y et to be develope d. Acc ording ly , the orde r is REVERSED and the ca se REMANDED for f urther pr oc e e din g s, no w w ithB ra nd ie Atkin s at th e c on tr ols

.