# Simmons v. Village of Minier

> District Court, C.D. Illinois · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10136477

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136477

## How later opinions describe it (automated extraction)

- noting that although the caption in the district court listed the Portland Police Department as a defendant, the Seventh Circuit “adjusted the caption” because the police department was not a suable entity

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

KENNETH SIMMONS, )
)
Plaintiff, )
)
v. ) Case No. 1:19-cv-01231-SLD-JEH
)
JENNIFER PARKINSON and MINIER )
POLICE DEPARTMENT, )
)
Defendants. )

ORDER

Before the Court is Defendant Minier Police Department’s1 (“Minier”) Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5), ECF No. 20; Plaintiff Kenneth Simmons’s first
Motion to Consider, ECF No. 32; Plaintiff’s second Motion to Consider, ECF No. 33; and
Plaintiff’s third Motion to Consider, ECF No. 38. For the following reasons, Minier’s Motion to
Dismiss is DENIED, and the motions to consider are GRANTED.
BACKGROUND
Plaintiff brought this suit on July 8, 2019, alleging that Minier, police officers Jennifer
Parkinson and Aaron Hodgson, and United States District Judge James Shadid violated various
of his rights protected by federal and state law. Compl. 2–8, ECF No. 1. An amended complaint
was filed on February 18, 2020, alleging similar claims. Am. Compl. 2–7, ECF No. 12. At merit
review, the Court dismissed Plaintiff’s claim against Judge Shadid with prejudice, dismissed
without prejudice his claims against Parkinson and Hodgson in their official capacities, and
found that Plaintiff had sufficiently alleged an Americans with Disabilities Act (“ADA”) Title II

1 Defendant Minier Police Department asserts that the correct entity to be sued is the Village of Minier. See Mot.
Dismiss 1, ECF No. 20. This issue will be addressed below, see infra Section II(B)(i); the Court will refer to the
party as “Minier” in the meantime.
claim against the Minier Police Department and a battery claim against Parkinson. Feb. 18, 2020
Order 4–9, ECF No. 11. It then instructed Plaintiff to provide addresses for the Minier Police
Department and Parkinson and directed the Clerk of Court to send requests to waive service of
summons to these two parties at those addresses. See id. at 10–11. On May 12, 2020, because
neither Defendant had filed a signed waiver of summons, the Court directed the Clerk to mail a

second request to waive service of summons to each Defendant. May 12, 2020 Text Order.
Plaintiff filed a motion for status on July 10, 2020. Mot. Status, ECF No. 16. As neither Minier
nor Parkinson had agreed to waive service of process, on July 30, 2020, Magistrate Judge
Jonathan E. Hawley directed the Clerk of Court to prepare summonses and forward them to the
U.S. Marshal for service of the two defendants. July 30, 2020 Text Order. Judge Hawley also
extended the deadline for service to September 28, 2020. Id.
On September 21, 2020, Minier filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(5), arguing that the case against it should be dismissed because Plaintiff
had failed to properly and timely serve his lawsuit. Mot. Dismiss 1. Plaintiff opposes dismissal.
First Resp., ECF No. 24; Second Resp., ECF No. 28.2

DISCUSSION
I. Motions to Consider
In his first Motion to Consider, Plaintiff asks the Court to review and consider the
October 13, 2020 text order entered by United States District Judge James E. Shadid in Simmons
v. Village of Minier, Case No. 1:20-cv-01283-JES-JEH. First Mot. Consider 1–2. The second
Motion to Consider makes the same request. Second Mot. Consider 1. And in the third, in
addition to repeating the request made in the first and second Motions to Consider, Plaintiff

2 While Minier believes the motions to consider should be stricken, Resp. Mots. Consider 2–3, ECF No. 39, it does
not address the existence of the second response.
requests that the Court consider the October 16, 2020 text order entered by Judge Hawley in
Simmons v. Jack’s Café, Case No. 1:20-cv-01284-MMM-JEH. Third Mot. Consider 1–3.
Minier asks the Court to strike the second and third Motions to Consider, arguing that they do
not cite to any law or authority in violation of Local Rule 7.1(B)(1) and that a party opposing a
motion to dismiss is only allowed a single response under Local Rule 7.1(B)(2). Resp. Mots.

Consider ¶¶ 2, 5–6, ECF No. 39.
This Court routinely grants motions for leave to provide supplemental authority when it
is considering motions to dismiss, even where the party has already filed a motion or response.
See, e.g., Heidelberg v. Manias, 503 F. Supp. 3d 758, 773 (C.D. Ill. 2020) (granting motions to
file supplemental authority filed after briefing for motion to dismiss was complete). Plaintiff’s
motions to consider are granted. The Court has considered the additional cases Plaintiff has
brought to its attention.
II. Motion to Dismiss Pursuant to Rule 12(b)(5)
A. Legal Standard

A plaintiff is responsible for ensuring that the summons and complaint are served on a
defendant within the allotted time. Fed. R. Civ. P. 4(c)(1). “If a defendant is not served within
90 days after the complaint is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or order that service
be made within a specified time.” Id. 4(m). “[T]he decision of whether to dismiss or extend the
period for service is inherently discretionary.” Cardenas v. City of Chicago, 646 F.3d 1001,
1005 (7th Cir. 2011); see Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)
(“Even if a plaintiff does not establish good cause, the district court may in its discretion grant an
extension of time for service.”). However, upon a showing of good cause by the plaintiff, “the
court must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m) (emphasis
added).
A defendant may file a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(5) to enforce the service of process requirements. Cardenas, 646 F.3d at 1005. “The
plaintiff bears the burden to demonstrate that the district court has jurisdiction over each

defendant through effective service.” Id.
B. Analysis
Minier asks the Court to dismiss this suit with prejudice because Plaintiff “has failed to
timely effectuate service of process on Minier,” proffering two reasons for why service has been
insufficient. Mot. Dismiss 1. First, it argues that the correct entity to be sued is the “Village of
Minier,” not the “Minier Police Department,” and that neither of the appropriate parties to be
served on the Village of Minier’s behalf—the Village Clerk or the Mayor—has been served. Id.
at 1, 4, 8–9. Second, it contends that the deadline for service has expired. Id. at 5–8. The Court
will address each of these issues in turn, beginning with determining the identity of the correct

“Minier” defendant.
i. Correct Party to be Served
Two different “Minier” defendants were referenced in the Court’s merit review order. In
addressing Plaintiff’s § 1983 claim against Parkinson in her official capacity for using excessive
force while arresting him, the Court noted that because Parkinson was sued in her official
capacity, Plaintiff was “actually suing her employer” and that, as “[t]he Minier Police
Department is not a ‘person’ amenable to suit under § 1983,” the Court would consider
Parkinson’s employer to be the Village of Minier, not the Minier Police Department. Feb. 18,
2020 Order 4–5. Because Plaintiff failed to “allege any policies, practices, or action by a policy
maker in regard to Parkinson’s alleged use of excessive force,” as required to state a claim
against an employer under § 1983, the Court dismissed the claim without prejudice. Id. at 5.
However, the Court found that Plaintiff’s ADA Title II claim—in which he alleged that “he was
injured during his arrest because the Minier Police Department’s practices, policies, and
procedures do not train officers how to safely arrest a disabled person”—was brought against the

Minier Police Department. See id. at 6–7. Deciding that Plaintiff’s ADA allegations against
Minier Police Department were sufficient for the merit review stage, the Court directed the Clerk
to add “Minier Police Department” to the caption as a Defendant and informed Plaintiff that the
Court would begin the process of serving Minier Police Department (along with Parkinson). Id.
at 9, 10.
Minier asserts that the correct party to be sued is the Village of Minier, not the Minier
Police Department.3 Mot. Dismiss 1. Pursuant to Federal Rule of Civil Procedure 17(b)(3), the
capacity of an entity to sue or be sued is determined “by the law of the state where the court is
located” where the party is neither an individual nor a corporation. In Illinois, “[a] party to

litigation must have a legal existence, either natural or artificial, to sue or be sued.” Jackson v.
Village of Rosemont, 536 N.E.2d 720, 723 (Ill. App. Ct. 1988). “It is well-established in Illinois
that a police department is not a suable entity . . . .” Lalowski v. City of Des Plaines, No. 08 C
3780, 2010 WL 145860, at *2 (N.D. Ill. Jan. 8, 2010) (citing Chan v. Wodnicki, 123 F.3d 1005,
1007 (7th Cir. 1997) (“The Chicago Police Department was dismissed because it was not a
suable entity.”)); see also Bell v. Bloomington Police Dep’t, 15-CV-1284, 2015 WL 5591100, at
*2 (C.D. Ill. Sept. 22, 2015) (“Nor may a claim be pursued against the police department, since
the department is not a suable entity.”); Newkirk v. Village of Steger, No. 02 C 9077, 2004 WL

3 Minier makes no legal argument on this point but merely asserts that the Minier Police Department is the incorrect
party to be sued. See Mot. Dismiss 1.
2191589, at *23 (N.D. Ill. Sept. 24, 2004) (“Our Court of Appeals has suggested, and several
courts in this district have found, that municipal police departments are not separate entities from
the municipality itself and, therefore, are not suable.”). Rather, “[p]olice departments are
departments of the municipalities they serve; they do not have distinct legal existences under
Illinois law,” and the municipality should therefore be sued instead. See Hall v. Village of

Flossmoor Police Dep’t, No. 11-CV-5283, 2012 WL 379902, at *2 (N.D. Ill. Feb. 1, 2012); see
Verrecchia v. Village of Elmwood Park, Case No. 16 C 0397, 2016 WL 3612117, at *3 (N.D. Ill.
July 6, 2016) (“[B]ecause the Village of Elmwood Park’s Police Department is not a suable
entity, namely, that it does not have a separate legal existence from the Village of Elmwood,
Plaintiff’s claims against the police department are properly brought against the Village.”).
Thus, although the Court previously determined that Plaintiff’s ADA Title II claim was
brought against the Minier Police Department and directed the Clerk to add “Minier Police
Department” to the caption as a defendant, see Feb. 18, 2020 Order 10, it is clear that the Village
of Minier (“Village of Minier” or “Village”) is the correct defendant to be sued. The Clerk is

directed to replace “Minier Police Department” with “Village of Minier” in the caption. See Fed.
R. Civ. P. 54(b) (“[A]ny order or other decision . . . that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties . . . may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”); see
also, e.g., Best v. City of Portland, 554 F.3d 698, 698 n.* (7th Cir. 2009) (noting that although
the caption in the district court listed the Portland Police Department as a defendant, the Seventh
Circuit “adjusted the caption” because the police department was not a suable entity).
ii. Service of the Village of Minier
The Village of Minier states that it was never served, as it can only be served by service
on the Mayor, as the Village’s chief executive officer, or the Village Clerk. Mot. Dismiss 8–9.
To serve a municipal corporation, a copy of the summons and complaint must be delivered to its
chief executive officer, or it must be served “in the manner prescribed by . . . state[] law.” Fed.

R. Civ. P. 4(j)(2). In Illinois, a village is considered a municipality, 65 ILCS 5/1-1-2(1), and a
village may be served by leaving a copy of the summons with the president of the board of
trustees or the village clerk, 735 ILCS 5/2-211. The executed summons was filed on the docket
on September 14, 2020; it shows that Daryl Weseloh, the Chief of Police, was personally served
on September 1, 2020. Executed Summons, ECF No. 23. The Chief of Police is not one of the
parties who may be served on behalf of the Village of Minier. Accordingly, the Court finds that
the Village of Minier has not been properly served.4
iii. Timely Service
The Court next turns to the issue of whether Plaintiff can still serve the Village of Minier

in a timely fashion. The Village argues that the time for service has expired. See Mot. Dismiss
5–8. It provides a summary of the service history of the case which emphasizes that Plaintiff
filed his motion for status, prompting the Court to order service by the U.S. Marshal, “well past
the initial 90 day deadline for service . . . , past the 90 day deadline for [Plaintiff] to file a status
motion as extended to Plaintiff in the Court’s February 18, 2020 Merit Review Order, past the

4 In his second response to the motion to dismiss, Plaintiff states that Sasha Horner, Acting Village Clerk for the
Village of Minier, was, in fact, served on September 1, 2020. Second Resp. 1–2. In support, he provides a
screenshot from the Village of Minier’s website showing that Horner is identified as the “Clerk,” id. at 3, and a letter
from the Minier Police Department stating that Plaintiff was receiving a “DVD containing the video of the summons
being delivered to Deputy Clerk Sasha Horner,” apparently in response to Plaintiff’s FOIA request for “copies of the
video from village hall whereas [sic] the [V]illage and [O]fficer Parkinson were served summons in my lawsuits,”
id. at 4. This evidence is too vague to satisfy Plaintiff’s burden to establish that the Village Clerk was served. See
Cardenas, 646 F.3d at 1005.
additional extension of time granted by the Court in its May 12, 2020 docket Order, and . . .
likely past the statute of limitations. Id. at 6–7 (emphasis omitted). The Village also notes that
“Judge Hawley’s July 30, 2020 ruling to extend the deadline to September 28, 2020 for service
by the U.S. Marshall [sic] was not entered prior to all extensions granted by the District Court
Judge expiring in mid-June 2020, and, furthermore, was not made pursuant to any ‘good cause’

offered to the Court by [Plaintiff],” appearing to suggest that the deadline for service should not
have been extended to September 28, 2020. See id. at 8. But the Court has the discretion to
extend the deadline for service regardless of whether Plaintiff has established good cause. See
Troxell, 160 F.3d at 383. The Village’s assertion that Plaintiff’s “reli[ance] on the Court to do
his work for him . . . . should not be countenanced,” Mot. Dismiss 8, ignores this clear grant of
discretionary authority to extend the deadline if it so chooses.
Indeed, the Court may still exercise its discretion to extend the period for service in this
case rather than granting the Village’s motion to dismiss, see Cardenas, 646 F.3d at 1005, which
is what it chooses to do here. Judge Hawley extended the service deadline to September 28,

2020, July 30, 2020 Text Order, by which date a summons had been returned executed as to the
Minier Chief of Police, Executed Summons 2. Having been previously informed by the Court
that the correct defendant was the Minier Police Department, see Feb. 18, 2020 Order 10, it was
reasonable for Plaintiff to believe at that point that Minier had been properly served. See Second
Resp. 1–2 (stating that Plaintiff was aware that the U.S. Marshal had been ordered to serve
Minier and Parkinson and that he believed that a party had been served on September 1, 2020).
Given the Court’s role in engendering this confusion, as well as the fact that the statute of
limitations may have passed, see Mot. Dismiss 6, and Plaintiff’s pro se status, the Court extends
the deadline for service of the summons and complaint to the Village of Minier to November 30,
2021. See Sheskey v. Madison Metro. Sch. Dist., No. 12-cv-488-wmc, 2013 WL 6628990, at *1
(W.D. Wis. Dec. 17, 2013) (allowing the plaintiff one more opportunity to properly serve the
defendant, despite two previous insufficient attempts, “because (1) the statute of limitations
would likely bar refiling, (2) [the] defendant had actual notice of the lawsuit, and (3) [the]
plaintiff’s status as a pro se litigant”).

iv. Service of Parkinson
The motion to dismiss is filed solely by the Village of Minier, see Mot. Dismiss 1;
Parkinson has not contested the adequacy of her service.5 See Feb. 18, 2020 Order 9 (finding
that Plaintiff has sufficiently alleged a state law claim of battery against Parkinson).
Nevertheless, the Court finds that Parkinson’s purported service is also inadequate: the summons
stating it was executed as to Parkinson shows that Chief of Police Weseloh was the individual
served, Executed Summons 1, which does not suffice to serve Parkinson. See Fed. R. Civ. P.
4(e) (providing that an individual may be served by delivering the summons and complaint to the
individual personally, leaving copies at the individual’s usual place of abode with a suitable

person who resides there, delivering copies to an agent authorized to receive service of process,
or following state law service rules); 735 ILCS 5/2-203(a) (providing that service may be made
on an individual by delivering the summons and complaint to the individual personally or by
leaving copies at the individual’s usual place of abode with a suitable resident and mailing a
copy of the summons addressed to the individual at his usual place of abode). Plaintiff is hereby
put on notice that the Court finds that Parkinson has not been properly served and that a failure to
properly serve her will result in the dismissal of the claims against her. See Fed. R. Civ. P. 4(m)
(providing that a court may “on its own after notice to the plaintiff” dismiss the action against a

5 To date, no one has entered an appearance on Parkinson’s behalf.
defendant who has not been served or order that service be made within a certain time frame).
Because the Court has extended the time for service on the Village, it also extends the time to
serve Parkinson.
CONCLUSION
For the foregoing reasons, Defendant Village of Minier’s Motion to Dismiss Pursuant to

Fed. R. Civ. P. 12(b)(5), ECF No. 20, is DENIED; Plaintiff Kenneth Simmons’s first Motion to
Consider, ECF No. 32, is GRANTED; Plaintiff’s second Motion to Consider, ECF No. 33, is
GRANTED; and Plaintiff’s third Motion to Consider, ECF No. 38, is GRANTED. The Court
extends the deadline for service of the summons and complaint in this case to November 30,
2021. The Clerk is directed to replace “Minier Police Department” with “Village of Minier” in
the caption. Plaintiff is directed to provide to the Court an address for the Mayor or the Village
Clerk of the Village of Minier. Plaintiff must also provide the Court with an address for
Defendant Jennifer Parkinson. Once Plaintiff provides the addresses, the Clerk is directed to
prepare summonses and forward them and copies of the complaint to the U.S. Marshal for

service. The Clerk is also directed to send a copy of the Executed Summons, ECF No. 23, to
Plaintiff.
Entered this 30th day of September, 2021.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136477. Public record. Not legal advice.