to stay in court.?

Finally, although the matteris even less clear because of
the permitted generality of the Count III allegations (buttressed
by the required favorable inferences) , that count must be
sustained at this stage as well. .This Court recognizes and has
regularly applied the restrictivé=regime that has been announced
in Albright v. Oliver, 510 U.S. 266: (1994) and the subsequent
caselaw--our Court of Appeals' opinion in Newsome v. McCabe, 256
F.2d 747, 750-53 (7 Cir. 2001) exemplifies the more stringent
approach that courts must now take to the attempted application
of 42 U.S.C, §1983 to claims of the type at issue here. But in
sheer pleading terms plaintiffs are afforded a good deal of
leeway. Again this Court denies. the motion to dismiss, but
without prejudice to any future efforts to dismiss the Count III

claim based on further information.

Milton .I... Shadur
Senior United States District Judge

Date: March 11, 2003

> It may well be that somewhere down the road this Court,
just as its colleague Honorable William Hart did in DuFour~Dowell
v. Cogger, 969 F.Supp. 1107, 1123. (N.D. Ill. 1997), find the
claim to be subject to dismissal... But that cannot be done at
this pleading stage, given the favorable reading (and all
favorable inferences) that must be given to the Complaint at this
stage.



L
MirOrder Form (96/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Milton I. Shadur Sitting Judge if Other
or Magistrate Judge .. than Assigned Judge
CASE NUMBER 02 C 8903 DATE 3/11/2003
CASE Mary Grzanecki vs. Officer M. Lopez, 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
of the motion being presented.]

MOTION:
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer brief due.
(4) Oo Ruling/Hearing on__setfor____at
(5) Qo Status hearing[held/continued to] [set for/re-set for]on___——s set for at_—.
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—setfor_———saat__
(7) o Trial[set for/re-set for]on__—_at pe
(8) a [Bench/Jury trial] [Hearing] held/continued to. __ at : vo
(9) a This case is dismissed [with/without] prejudice.and without costs[by/agreement/pursuant to]
OFRCP4(m) ClLocal Rule 41.1 CIFRCP41(a)(1) O FRCP41(a)(2).
(10) a [Other docket entry] Enter Memorandum Opinion and Order. Based on the original and

supplemental submission by counsel, this Court.denies all aspects of Lopez’ motion at this time. (5-1)

dl) ff [For further detail see order attached to the original minute order.}

No notices required, advised in open court. Document

Number

No noti red.
lo notices require: umber of notices

vo | Notices mailed by judge’s staff. iMAR 1 8 2003

Notified counsel by telephone.

date docketed

Docketing to mail notices.

Mail AO 450 form. 1ynod Losi “sn
Copy to judge/magistrate judge. Wagaa
snzmo0s
courtroom Ol:4 Hd 21 Y¥HEeU dave mailed notice
SN deputy’s ON hp SN
initials S634
Date/tithawcerted it EE
central Clark's Office naling deputy Ils



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARY GRZANECKI, et al.,
Plaintiffs,
v. No. 02 C 8903
OFFICER M. LOPEZ, et al.,

Defendants.

MEMORANDUM _OP N_AND ORDER

Both sides' counsel have complied with this Court's request
for supplemental filings in connection with the motion by
defendant Martin Lopez (“Lopez”) to dismiss several of the claims
in this action: claims on behalf_of the two minor coplaintiffs
of their unreasonable (and hencé Unconstitutional) seizure and of
the intentional infliction of emotional distress on them, and
their mother's claim of a due process violation in Complaint
Count III. Based on the original and supplemental submissions by
counsel, this Court denies all aspects of Lopez' motion at this
time.

As for the seizure issue relating to the minor children,
Lopez relies on the absence of any intention to transport them to
the police station to be detained or questioned in connection
with the criminal charge against. their mother. And Lopez'
counsel goes on to urge that any Claimed seizure was reasonable,
because it avoided any claimed substantive due process violation

that might have resulted if the-minors had heen left alone and


some harm had befallen them. But _that bootstrapping argument
cannot succeed if (as this Court.must assume on the current
motion to dismiss) these were minors of tender years, incapable
of fending for themselves. On that premise, the officers'
assertedly unconstitutional seizute of the minors' mother (which
must also be assumed for present purposes) necessarily carried
with it the level of involuntariness on the minors' part (the
absence of freedom to leave) that is the hallmark of a seizure.
Although the facts may ultimately play out differently, the
threshold motion to dismiss under Fed. R. Civ. P. 12(b) (6) must
be and is denied.

As for the intentional infliction of emotional distress
claim, Lopez cites to the Illinois Supreme Court's reconfirmation
in Cergan v. Muehling, 143 I11.2d4..296, 574 N.H.2d 602 (1991) of
the previously announced zone-of-physical-danger rule as to
claims of negligent infliction of.emotional distress by
bystanders (the category into which the children here fall). But
nothing said in Corgan applies to a claim of intentional
infliction of emotional distress... On that score this Court is of
course prepared to apply the demanding standards that have been
long established by the Illinois.Supreme Court and reiterated,
e.g., in Doe v. Calumet City, 161.I11.2d 374, 641 N.E.2d 498

(1994)--but at this early pleading stage plaintiffs are entitled