-~4-

Defendants now move to dismiss or strike the amended
complaint. Plaintiff has failed to respond to defendants’ motion.?

DISCUSSION

The purpose of a 12(b) (6) motion to dismiss is to test the
sufficiency of the complaint, not to resolve the case on the
merits. 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356, at 294 (2d ed. 1990). Dismissal is
appropriate only if “‘it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations.’” Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.
1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
A. Defendants’ General Ar t:

1. False Ar £/C. t

Defendants argue that plaintiff's admission that she was
“initially arrested for domestic battery . . . defeats plaintiff’s
claims of false arrest.” (Motion at 4.) It does not appear,
though, that plaintiff is claiming that she was falsely arrested
for domestic battery. Her complaint goes to the felony battery
charges and the extent to which her seizure and search pertained to
those charges, but not to the initial arrest for domestic battery.

To the extent that she is claiming false arrest relating to the

2 Pplaintiff’s response to the motion was due on February 18, 2004. No
response was filed. In defendants’ “reply” brief, which was filed on March 25,
2004, defendants’ counsel represents that she left a voice-mail message for
plaintiff’s counsel inquiring about a response brief but received no response
brief.



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a violation of her Sixth Amendment rights, that claim is dismissed.
Count IV is dismissed without prejudice, and plaintiff is given
until July 21, 2004 to replead Count IV to include an allegation
regarding when the felony battery proceedings were terminated.

Defendants’ motion to dismiss is denied as to Counts I, II, III,

and V.

DATE: July 7, 2004

John F. Grady, United States District Judge



-6-
extent that plaintiff is attempting to allege a violation of her
Sixth Amendment rights, that claim is dismissed.

B. Counts IT and V
4§ 1983 Fourteenth Amendment and Malicious Prosecution Claims)

Defendants’ argument regarding Counts II and V is somewhat
difficult to follow, but the gist of it is that because plaintiff
was initially arrested on domestic battery charges and does not
appear to contest the existence of probable cause to arrest her on
those charges, there was probable cause to arrest her on the felony
battery charges. Therefore, defendants contend, plaintiff’s due
process and malicious prosecution claims must be dismissed.

It is true that the existence of probable cause to arrest is
a bar to a § 1983 claim for false arrest or a state law claim for
malicious prosecution. See Penn v. Chicago State Univ., 162 F.
Supp. 2d 968, 975 (N.D. Ill. 2001). However, there is an important
limitation on this doctrine: there must be probable cause for a

charge closely related to the charge upon which the plaintiff was

ultimately prosecuted. See id. at 976 (citing Kelley v. Myler, 149
F.3d 641, 647-48 (7th Cir. 1998)). According to the amended

complaint, the felony battery charges against plaintiff were based
on completely different purported conduct from the domestic battery
charges. Therefore, the two types of charges are not “closely
related,” and the existence of probable cause to arrest plaintiff

on the domestic battery charges does not bear on the issue of


-5-
felony battery charges, we are not persuaded by defendants’

argument for the reasons expressed infra section B.

2. Res Judicata

Defendants contend that res judicata bars plaintiff's attempt
to “relitigate” the Harris action and requires that any allegations
concerning the arrest in that case be stricken from the amended
complaint. This is a peculiar argument because the complaint does
not challenge, or even refer to, any of the rulings in Harris v.
Nikeas. Plaintiff does not attempt to “relitigate” that case; she
merely alleges that the Officers’ conduct was in retaliation for
her having filed the Harris suit against Lieutenant Riccio. The
doctrine of res judicata is not applicable here.

3. Sixth Amendment

Defendants also argue that “[p]laintiff’s complaint is devoid
of any allegation concerning the Sixth Amendment and therefore that
apparent claim must be dismissed for failure to state a claim.”
(Motion at 11.) While there are references to the Sixth Amendment
in paragraphs 1 and 14(a) of the amended complaint, none of the
numbered counts refers to the Sixth Amendment or can be construed
as a claim for a Sixth Amendment violation. Moreover, there is no
conduct alleged that would be relevant to a Sixth Amendment claim.
Therefore, although none of the numbered counts of the amended

complaint are explicitly labeled as Sixth Amendment claims, to the


-~B-

Plaintiffs’ claims for assault and battery (Count VI) and for
the statutory violation (Count VII) accrued on the date of the
incident--August 17, 2000. The complaint was filed two years and
two days later, on August 19, 2002, well past the one-year statute
of limitations. Counts VI and VII are therefore time-barred.

Although the Tort Immunity Act’s statute of limitations also
applies to Count IV, an intentional infliction of emotional
distress (IIED) claim, it is unclear from the amended complaint
when that claim accrued because the claim incorporates the alleged
malicious prosecution. “[C]ourts in this district have
consistently held that IIED claims based on facts alleged in
parallel claims for malicious prosecution accrue only when state
criminal proceedings are terminated.” Carroccia v. Anderson, 249
F. Supp. 2d 1016, 1028 (N.D. Ill. 2003) (citing cases). It is not
stated in the complaint when the criminal proceedings for the
felony battery charges were terminated. Therefore, Count IV will
be dismissed without prejudice. Plaintiff will be given leave to
amend Count IV to include an allegation regarding the date of the
termination of the criminal proceedings.

CONCLUSION

Defendants’ motion to dismiss or strike the amended complaint
is granted in part and denied in part. The motion is granted as to
Counts VI and VII, and those claims are dismissed with prejudice.

In addition, to the extent that plaintiff is attempting to allege



Mimate Order Form (06/97)

United States District Court, Northern District of Illinois

wipe Magistrate Jue John F. Grady “ian Assigned Judge
CASE NUMBER 02 C5911 DATE 71712004

CASE Nilda Gomez vs. Lt. Riccio, et al.

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ql) Oo Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due___.
@) Qa Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearing on __set for__at
(5) o Status hearing[held/continued to] [set for/re-set for] on__setfor_____at
(6) oO Pretrial conferencefheld/continued to] [set for/re-set for}on__—setfor__——ssat__—
() o Trialfset for/re-set for]on___—_at
(8) o [Bench/Jury trial] [Hearing] held/continuedto__at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O Local Rule 41.1 CIFRCP41(aX(1) 0) FRCP41(a)(2).

ao [Other docket entry] Defendants’ motion to dismiss or strike the amended complaint is granted in

part and denied in part. The motion ig granted as to Counts VI and VII, and those claims are dismissed
with prejudice. In addition, to the extent that plaintiff is attempting to allege a violation of her
Sixth Amendment rights, that claim is dismissed. Count IV is dismissed without prejudice, and plaintiff
is given until July 21, 2004 to replead Count IV to include an allegation regarding when the felony
battery proceedings were terminated. Defendants’ motion to dismiss is denied as to Counts I, II, III,
and V. Defendants may have until July 28, 2004 to file an answer to the complaint. Discovery shall proceed
forthwith. A status hearing is set for October 6, 2004, at 11:00 a.m., at which time the court will set
a date for the close of discovery.

ay Oo [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court.
No notices required. umber oC notices
v Notices mailed by judge's staff. JUL 0 9 2004
Notified counsel by telephone. dure docketed
Docketing to mail notices J uv vA
Mail AO.450 form. . docketng depry initia
Copy to judge/magistrate judge. 4unda foluisia sin
py to j agi judge. Mada anna
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central Clerk's Office sling deputy italy



-7-
whether there was probable cause for the felony battery charges and
associated proceedings.

Cc. Count IIT (§ 1983 First Amendment Claim)

In Count III, plaintiff alleges that the Officers’ initiation
of false charges in retaliation for her filing the Harris suit
deprived her “of the rights secured to her by the Petition Clause
of the First Amendment.” (Amended Complaint, ZI 23.) In addition
to their probable cause argument, which is off the mark, see supra
section B, defendants contend that “plaintiff has in fact filed”
this action and the Harris action and thus “cannot establish that
she has been impeded in this effort by any of the defendants.”
(Motion at 11.) However, plaintiff does not claim that defendants
impeded her in the filing of either case, but that they allegedly
pursued false charges against her in retaliation for having filed
the Harris suit. Accordingly, plaintiff states a First Amendment
claim.

D. Counts IV, VI & VII (State Law Claims)

Defendants assert that the state-law claims in Counts IV, VI,
and VII are barred by the Illinois Tort Immunity Act, 745 ILCS
10/8-101, which provides that “{n]o civil action . . . may be
commenced in any court against a local entity or any of its
employees for any injury unless it is commenced within one year
from the date that the injury was received or the cause of action

accrued.”


-3-

Plaintiff claims that the Officers “have fabricated ‘evidence’
in support of their claims, including witness statements, have
communicated false and misleading information to various Cook
County State’s Attorneys, and have withheld exculpatory information
from various Cook County State’s Attorneys.” (Amended Complaint,
q 12.)

According to the amended complaint, the misdemeanor domestic
battery charges were “dropped” (1 11), and plaintiff was
“acquitted” of the felony battery charges ({ 32).

Plaintiff filed this action on August 19, 2002 and filed an
amended complaint on October 15, 2003. The amended complaint sets
forth the following claims: § 1983 claims for violation of
plaintiff’s Fourth, Fourteenth, and First Amendment rights (Counts
I, II, and III); intentional infliction of emotional distress
(Count IV); malicious prosecution (Count V); assault and battery
(Count VI); and violation of 725 ILCS 5/103-1, a statute setting
forth the rights of an arrestee (Count VII). The Officers, who are
sued in their individual capacities, are named as defendants in all
of the counts. The City is named as a defendant in Counts IV, V,
VI, and VII, under a respondeat superior theory. Plaintiff seeks
nominal, compensatory, and punitive damages as well as attorney’s

fees.


-2-
Melanis and Rivera arrested plaintiff at her home in Chicago
pursuant to complaints of domestic battery and transported her to
the police station. Lieutenant Riccio learned of plaintiff's
arrest shortly thereafter. At the time, Lieutenant Riccio, along
with other police officers, was a defendant in an action brought by
plaintiff in the Circuit Court of Cook County, entitled Harris v.
Nikeas.1 (At the time of the amended complaint in this action, the
Harris case was still pending.) Officers Melanis and Rivera are
not defendants in the Harris case, but they were aware of it at the
time of plaintiff’s arrest.

Later that evening at the police station, the Officers
initiated two felony charges against plaintiff of battery to police
officers. According to plaintiff, these charges are based on false
claims that plaintiff had battered Officers Melanis and Rivera in
the course of the domestic battery arrest and are in retaliation
for plaintiff’s suit against Lieutenant Riccio.

Plaintiff also asserts that Lieutenant Riccio caused or
directed a strip search and a body cavity search of plaintiff for
the sole purpose of harassing her. In addition, Lieutenant Riccio
verbally harassed plaintiff. Plaintiff was then booked at the Cook
County Jail and held in custody pending a bond hearing on the false

felony battery charges.

¥ Evidently, plaintiff's name was Nilda Harris, not Nilda Gomez, at the
time that suit was filed.



02-5911.041-JCD July 7, 2004

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NILDA GOMEZ,
Plaintiff,

Vv...

No. 02¢5911  DOCKETED
JUL 0 9 2004

LT. RICCIO, GEORGE MELANIS,
JORGE RIVERA, and the CITY OF

CHICAGO,

Defendants.

MEMORANDUM OPINION

Before the court is defendants’ joint motion to dismiss or
strike the amended complaint. For the following reasons, the
motion is granted in part and denied in part.

BACKGROUND

This is a civil rights action by plaintiff Nilda Gomez against
the City of Chicago (the “City”), Chicago Police Lieutenant Anthony
Riccio, and Chicago Police Officers George Melanis and Jorge Rivera
(collectively, the “Officers”). Plaintiff claims that after her
arrest for domestic battery, she was falsely charged with felony
battery to police officers and subjected to a strip search and a
body cavity search in retaliation for having filed a civil rights
suit against defendant Riccio, among others.

The complaint alleges the following facts, which we take as

true for purposes of this motion. On August 17, 2000, Officers