# Freeman v. The Board of Trustees of the University of Illinois

> District Court, N.D. Illinois · January 29, 2018

URL: https://www.frixlaw.com/law-library/cases/10137873

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** January 29, 2018
- **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/10137873

## How later opinions describe it (automated extraction)

- stating that “the Chicago Police Department is not a suable entity separate from the City of Chicago”
- stating that “[t]he University of Illinois Police Department . . . like virtually all city or local police departments” is not “a suable entity”
- explaining that “this circuit has clearly held that the question of sovereign immunity is not a jurisdictional one” and explaining that sovereign immunity is a waivable defense”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARIO FREEMAN, )
Plaintiff,
v. No. 17 C 1776
THE UNIVERSITY OF ILLINOIS AT □
CHICAGO, et al., )
Defendants, )

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ partial motion to dismiss. For
the reasons stated below, the partial motion to dismiss is granted in part and denied
in part.

BACKGROUND
On March 6, 2016, Plaintiff Mario Freeman (Freeman) was allegedly a
customer at a restaurant (Restaurant) in Chicago, Illinois. Freeman allegedly got in
an argument with family members when leaving the Restaurant. Defendant Officer
Lubin (Lubin), who is an officer with the University of Illinois at Chicago Police
Department, allegedly responded to a call regarding an altercation occurring outside
the Restaurant. Lubin allegedly observed Freeman walking away from the

Restaurant. Freeman claims that as Lubin approached him, he raised his arms in the
air. According to Freeman, Lubin subdued Freeman with the assistance of two
nearby security guards, Defendant Myleson Collins (Collins), and Defendant
Richard McSwain (McSwain). Lubin, Collins, and McSwain allegedly threw
Freeman on the ground, and struck, punched, kneed, and stepped on Freeman.
Freeman includes in his amended complaint claims brought under 42 U.S.C. § 1983
(Section 1983) alleging that his constitutional rights were violated by the use of
excessive force by Lubin (Count J), and assault and battery claims (Counts II-II]).
Defendant The Board of Trustees of the University of Illinois (Board), Defendant
The University of Illinois at Chicago (UIC), Defendant The University of Illinois at
Chicago Police Department (Police Department), and Lubin now move to dismiss
the claims brought against them.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) requires a court to
dismiss an action when it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1);
see also Ezekiel v, Michel, 66 F.3d 894, 897 (7th Cir, 1995)(stating that when
reviewing a motion to dismiss brought under Rule 12(b)(1), the court “must accept
as true all well-pleaded factual allegations, and draw reasonable inferences in favor
of the plaintiff’), When subject matter jurisdiction is not apparent on the face of the
complaint and is contested, “the district court may properly look beyond the

jurisdictional allegations of the complaint . . . to determine whether in fact subject
matter jurisdiction exists.” Sapperstein v. Hager, 188 F.3d 852, 855-56 (7th Cir.
1999)(internal quotations omitted)(quoting United Transportation Union v. Gateway
Western Railway Co., 78 F.3d 1208, 1210 (7th Cir. 1996)). The burden of proof in
regards to a Rule 12(b)(1) motion is on the party asserting that the court has subject
matter jurisdiction. Jd.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir, 2012); Thompson v. Hl. Dep’t of Prof’! Regulation, 300 F.3d 750, 753 (7th Cir,
2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 716 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));

see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o
survive a motion to dismiss, the complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face,” and that “[a}
claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct
alleged”)(quoting Ashcroft v. Iqbal, 556 U.S, 662 (2009))(internal quotations
omitted).

DISCUSSION
Defendants move to dismiss based on sovereign immunity pursuant to Rule
12(b)(1). The court initially notes that a motion to dismiss based on sovereign
immunity should be brought pursuant to Rule 12(b)(6) rather than Rule 12(b)(1).
See Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818, 822 (7th Cir.
2016)(explaining that “this circuit has clearly held that the question of sovereign
immunity is not a jurisdictional one” and explaining that sovereign immunity is a
waivable defense”); Abdulgader v. United States, 596 F. App’x 315, 516 (7th Cir.
2015)(indicating that dismissal based on sovereign immunity “is for failure to state a
claim for relief, .. . not lack of jurisdiction”). Regardless of which standard is
applied, the result is the same in this instance.

I, Claims Brought Against the UIC and Police Department
UIC Defendants move to dismiss the claims brought against UIC and the
Police Department. UIC and the Police Department are merely subdivisions of the
State of Illinois and are not suable entities. See, e.g. Averhart v. City of Chicago,
114 F. App'x 246, 247 (7th Cir. 2004)(stating that “the Chicago Police Department is

not a suable entity separate from the City of Chicago”); Slaughter v. Rutledge, 2017
WL 4693966, at *2 n.1 (C.D. Ill. 2017)(stating that “the Peoria City Police
Department” was “not a suable entity apart from the City of Peoria”); McDaniels v.
Smith, 2017 WL 3891660, at *3 (E.D. Wis. 2017)(explaining that “the City of
Oshkosh Police Department is not a suable entity”); Muhammad v, Moore, 2014 WL
11394916, at *4 (C.D. Ill. 2014)(indicating that the University of Illinois “is not a
suable entity”); Stoltey v. Clark, 2006 WL 581027, at *2 (C.D. UL. 2006)(indicating
that the University of Illinois is not a suable defendant), Williams v. Univ. of Illinois,
945 F. Supp. 163, 165 (N.D. Ill, 1996)(stating that “[t]he University of Illinois Police
Department . . . like virtually all city or local police departments” is not “a suable
entity”). Therefore, UIC Defendants’ motion to dismiss the claims brought against
the Police Department and UIC is granted.

Il. Claims Brought against Board and Lubin in his Official Capacity
UIC Defendants move to dismiss the claims brought against the Board and
against Lubin in his official capacity. The claims are essentially one and the same
since claims brought against state officials in their official capacity is “the equivalent
of claims against the state... .” Katz-Crank v. Haskett, 843 F.3d 641, 646-47 (7th
Cir. 2016). The Eleventh Amendment “guarantees that an unconsenting State is
immune from suits brought in federal courts by her own citizens as well as by
citizens of another State.” Council 31 of the Am. Fed'n of State, Cty. & Mun,

Employees, AFL-CIO y. Quinn, 680 F.3d 875, 881 (7th Cir. 2012)(quoting Edelman

v. Jordan, 415 U.S. 651, 663 (1974)). The Board is deemed an instrumentality of
the State of Illinois and is protected by the Eleventh Amendment. See Peirick v.
Indiana Univ.-Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 695 (7th
Cir. 2007)(indicating that the “Board of Trustees of the University of [ilinois are

state agencies with Eleventh Amendment immunity”), Mutter v. Madigan, 17 F.
Supp. 3d 752, 757 (N.D. Ill. 2014)(stating that “state universities, as well as their
governing bodies, are protected from suit under the Eleventh Amendment”).
Freeman has not shown that the State of Illinois has consented to suit in this matter
and he has not pointed to any statutory authority or case law which would authorize
suit against the State of Illinois in this matter. Therefore, UIC Defendants’ motion to
dismiss the claims brought against the Board and Lubin in his official capacity is
granted.

IL, Claims Brought Against Lubin in his Individual Capacity
UIC Defendants move to dismiss the claims brought against Lubin in his
individual capacity. UIC Defendants argue that because Freeman alleges that Lubin

was an agent of the State of Illinois and was acting within the scope of his
employment, an individual capacity claim is essentially a claim brought against the
State of Illinois, UIC Defendants also argue that such a claim would be precluded
by the Eleventh Amendment because Lubin was sued in both his official and

individual capacities. Such claims, however, are entirely distinct. A claim brought
against Lubin in his individual capacity is not the same claim as the official capacity
claim, which is essentially brought against the State of Illinois. The Seventh Circuit
has made clear that “[t]he Illinois doctrine of sovereign immunity does not apply to
state-law claims against a state official or employee who has violated statutory or
constitutional law.” Murphy v. Smith, 844 F.3d 653, 655 (7th Cir. 2016). In this
matter, Freeman alleges that Lubin personally violated his constitutional rights.
Thus, the individual liability claim brought against Lubin is not barred by the
Eleventh Amendment. See Parker v. Lyons, 757 F.3d 701, 706 (7th Cir,
2014)explaining that “/tJo the extent that [the plaintiff was] is suing [the defendant
officer] in his official capacity as a state officer, damages are barred by the Eleventh
Amendment”)(emphasis added); Lacour v. T. Duckworth, 2017 WL 3313702, at *10
(S.D. Ill, 2017)(explaining that “[t]he Eleventh Amendment immunizes the State, its
agencies, and its officials acting in their official capacities from a suit in federal

court for money damages,” but that “suits against state officials in their individual
capacities are permissible”).
UIC Defendants also argue that the State of Illinois will be indemnifying
Lubin for damages and that the claim brought against him is thus a claim seeking to
gain monies from the State of Illinois. However, the Seventh Circuit has made clear
that “a state’s decision to indemnify its employees does not transform a suit against
individual defendants into a suit against the sovereign.” Benning v. Bd. of Regents

of Regency Universities, 928 F.2d 775, 779 (7th Cir. 1991); see also Taylor v.
Wexford Health Sources, Inc., 2016 WL 3227310, at *7 (N.D. Ill. 2016)(stating that
“Talithough the Eleventh Amendment bars suits for monetary relief against the State,
suits against state officials in their individual capacities are permissible as long as
the State is not the real, substantial party in interest’’)(internal quotations
omitted)(quoting Kroll v. Bd. of Trs. of Univ. of Ill., 934 F.2d 904, 907 (7th Cir.
1991)).
UIC Defendants also argue that the assault and battery claim brought against
Lubin is one that is barred by the Illinois sovereign immunity statute and falls within
the exclusive jurisdiction of the Illinois Court of Claims. The Illinois State Lawsuit
Immunity Act, 745 ILCS 5/0.01 et seg. prevents the State of Illinois from being sued
without a waiver. Murphy v. Smith, 844 F.3d 653, 658 (7th Cir. 2016)(citing 745
ILCS 5/1); see also Hogle v. Baldwin, 2017 WL 4125258, at *4 (C.D. Ill.
2017)(stating that the “Court of Claims Act vests exclusive jurisdiction in the Court
of Claims in all actions ‘against the State founded upon any law of the State of
Illinois’” (quoting 705 ILCS 505/8(a)}). The determination of “[w]hether the statute

covers such state-law claims is a matter of state law.” Murphy, 844 F.3d at 658. A
claim brought against a state employee is deemed a claim brought against the state
under the Illinois sovereign immunity statute when “there are (1) no allegations that

an agent or employee of the State acted beyond the scope of his authority through
wrongful acts; (2) the duty alleged to have been breached was not owed to the public

generally independent of the fact of State employment; and (3) where the
complained-of actions involve matters ordinarily within that employee's normal and
official functions of the State.” Jd. (internal quotations omitted)(quoting Mealy v.
Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990)). In the instant action, Freeman
specifically alleges that Lubin engaged in wrongful conduct that was “outside the
scope of his authority.” (A Compl. Par. 23). Freeman can thus pursue his battery
claim against Lubin in this case. Therefore, UIC Defendants’ motion to dismiss the
individual capacity claims brought against Lubin is denied.

CONCLUSION
Based on the foregoing analysis, UIC Defendants’ partial motion to dismiss is
granted in part and denied in part. All claims brought against the Police Department,
UIC, and the Board are dismissed. UIC Defendants’ motion to dismiss the
individual capacity claims brought against Lubin is denied.

Domnk De - Ahoy
Samuel Der Veghiayan
United States District Court Judge

Dated: January 29, 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10137873. Public record. Not legal advice.