Louden Jr v. Carter

THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Ronald Eric Louden, Jr., )

) Case No 18-cv-5242

Plaintiff, )

) Judge Jorge L. Alonso

vs. )

)

Officer Kenneth Carter, Officer Mikhail Geyer )

and the City of Evanston, )

)

Defendants. )

Memorandum Opinion and Order

Plaintiff Ronald Louden, Jr. filed his first amended complaint alleging federal and state-

law claims against Defendants Carter and Geyer stemming from Louden’s arrest on June 6,

2018. Defendants move to dismiss Louden’s first amended complaint. For the reasons below, the

Court grants in part and denies in part Defendants’ motion to dismiss [94].

Background

The Court takes the following facts from Louden’s first amended complaint. On June 6,

2018, Defendants Kenneth Carter and Mikhail Geyer, Evanston Police Department detectives,

arrested Louden. Louden alleges that Carter and Geyer approached him at approximately 10:30

a.m. with their hands on their service weapons. Fearing for his life, Louden called the police and

left the line open. Carter attempted to remove the phone from Louden’s possession and pushed

him against a nearby vehicle. Geyer and Carter then physically restrained Louden. As Louden

protested, the Defendants twisted his arms behind his back and eventually handcuffed him so

tight that he lost circulation in his arms and wrist. Defendants then shot Louden with a taser and

picked him up by his legs and slammed him into the ground. Louden alleges he was handcuffed

at this time and could not protect himself from the fall. He lost consciousness, shattered his front

teeth, and punctured his lip. After regaining consciousness, Louden gestured to his injuries and

cried out in pain, but Defendants responded by tasing him again. Defendants then placed Louden

in a spit mask, shackled him to a gurney, and physically manipulated his anus and genitals as he

struggled to breathe through the spit mask. When Louden yelled for help, Defendants choked

him. Defendants transferred Louden to NorthShore Evanston Hospital. Later Defendants

transferred Louden to the Evanston police station where he sat for over two days with untreated,

open wounds.

Eventually, the State’s Attorney’s office charged Louden with several felonies connected

to that arrest.1 Louden pled guilty to unlawful use or possession of a weapon by a felon on May

14, 2019. In connection with that plea, Louden stipulated to the following factual basis:

Judge, if called to testify under oath at trial, Evanston Police Officer Carter, then

star 130, would testify that on June 6, 2018 in the evening hours he was working

and employed by the Evanston Police Department. And he and his partner had

received information from a confidential informant concerning…the defendant,

being specifically named by the confidential informant, information that the

defendant was in possession of a handgun with an extended magazine standing by

a white Lexus at the rear of 2024 Wesley Avenue, Evanston, Illinois, Cook

County.

That the officers immediately relocated to that location and observed the

defendant, whom they would identify in open court, standing by a vehicle, that

vehicle being the same make and model and type as described by the confidential

informant.

The officer would further testify he has had prior interactions with this defendant

and knew him by name. That when they arrived on scene, that the officer

1 Although the prior factual allegations were taken from Louden’s first amended complaint, the Court

takes facts related to Plaintiff’s guilty plea from Defendant’s motion to dismiss and the filed transcript of

Plaintiff’s May 14, 2019 guilty plea hearing before the Honorable Aleksandra N. Gillespie in the Circuit

Court of Cook County. The Court may take judicial notice of facts “not subject to reasonable dispute” and

either (1) “generally known within the territorial jurisdiction of the trial court;” or (2) “capable of accurate

and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” General

Elec. Capital Corp., v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997); see also Scholes v.

Lehmann, 56 F.3d 750, 762 (7th Cir. 1995) (allowing judicial notice of facts recited in a plea agreement).

The Court finds that the plea hearing transcript satisfies these requirements and takes judicial notice of

Plaintiff’s guilty plea and the corresponding factual basis.

observed the defendant place an object into the vehicle through an open front

passenger window. That when officers approached, the defendant began to block

that window and appeared very nervous. As officers spoke with the defendant, the

defendant started to indicate that he was going to die and called, using his cell

phone, 911.

The officers then tried verbally to get the defendant to move away from the open

window and then tried to physically move him. And as the officers tried to diffuse

the situation, they had concern because the defendant kept stating that he was

going to die, and that the defendant would not move away from the window.

Officers then tried to place handcuffs on the defendant. The defendant stiffened

up his body and tried to keep his arms straight. Officer Carter numerous times

told this defendant that he was going to be tased. The defendant did ultimately get

his hands free at which point the officers deployed their taser and tased the

defendant who fell and hit his mouth on a concrete parking barrier and appeared

to be injured. Officers did recover from that car in the front passenger side a

loaded .9 millimeter handgun, as well as some cannabis. An ambulance was

called for the defendant for his injuries.

Further the evidence would show that the defendant has a prior felony conviction

for possession of a controlled substance with intent to deliver within one thousand

feet of a school under case number 97 CR 1977001. And further…one of the

defendant’s priors includes a Class 3 under case number 16 C2 20487, which

makes the current case extendable as that was within the last ten years. So

stipulated?

Later, Louden filed the present lawsuit alleging various federal and state-law claims

connected to the night of his arrest. In summary, Louden asserts the following claims: (I)

excessive force under the Fourth Amendment and 42 U.S.C. § 1983; (II) false arrest under the

Fourth Amendment and 42 U.S.C. § 1983; (III) conspiracy under 42 U.S.C. § 1983; (IV)

inadequate medical care under the Fourth Amendment and 42 U.S.C. § 1983; (V) state-law

battery; (VI) state-law intentional infliction of emotional distress; and (VII) indemnification

against the City of Evanston. Defendants filed a motion to dismiss all seven counts.

Standard of Review

The Court may dismiss a claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure if the plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). Under federal notice-pleading requirements, a complaint must “give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A

complaint need not provide detailed factual allegations, but mere conclusions and a “formulaic

recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. To

survive a motion to dismiss, a claim must be plausible. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Allegations that are as consistent with lawful conduct as they are with unlawful conduct are not

sufficient; rather, plaintiffs must include allegations that “nudg[e] their claims across the line

from conceivable to plausible.” Twombly, 550 U.S. at 570.

In considering a motion to dismiss, the Court accepts as true the complaint’s factual

allegations and draws permissible inferences in the plaintiff’s favor. Boucher v. Finance Syst. of

Green Bay, Inc., 880 F.3d 362, 365 (7th Cir. 2018). Conclusory allegations are not assumed true,

nor are legal conclusions. Iqbal, 556 U.S. at 680 & 681 (noting that a “legal conclusion” was

“not entitled to the assumption of truth[;]” and rejecting, as conclusory, allegations that

“‘petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh

conditions of confinement”). The notice-pleading rule “does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.

Discussion

Defendants move to dismiss all seven counts in Louden’s first amended complaint. The

Court addresses the parties’ arguments under each count below.

I. Excessive Force

Although police officers may use force in certain circumstances, the Fourth Amendment

protects against the use of excessive force. Weinmann v. McClone, 787 F.3d 444, 448 (7th Cir.

2015) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Courts analyze excessive force

cases under an objective reasonableness standard; meaning that the officers’ actions must be

“‘objectively reasonable’ in light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. This analysis is

inherently fact-dependent, requiring consideration of such factors as the crime’s severity,

whether the person posed an immediate safety threat, and whether the person actively resisted

the officers. Williams v. Ind. State Police Dep’t, 797 F.3d 468, 472-73 (7th Cir. 2015) (citing

Graham, 490 U.S. at 396).

Defendants argue two grounds for dismissal of Louden’s excessive force claim: (1)

judicial estoppel; and (2) qualified immunity. The Court considers each argument in turn.

A. Judicial Estoppel

“Judicial estoppel is a doctrine of discretion that is intended to protect the integrity of the

judicial process.” See Juza v. Wells Fargo Bank, N.A., 794 Fed. App’x 529, 535 (7th Cir. 2020).

This doctrine “generally prevents a party from prevailing in one phase of a case on an argument

and then relying on a contradictory argument to prevail in another phase.” Pegram v. Herdrich,

530 U.S. 211, 227, n.8 (2000). In applying judicial estoppel, courts typically consider three

factors: “(1) whether the party’s later position was ‘clearly inconsistent’ with its earlier position;

(2) whether the party against whom estoppel is asserted succeeded in persuading the court in the

earlier proceeding; and (3) whether the party ‘seeking to assert an inconsistent position would

derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’”

In re Airadigm Commc’ns, Inc., 616 F.3d 642, 661 (7th Cir. 2010) (quoting New Hampshire, 532

U.S. at 750–51). These factors are neither exhaustive nor “inflexible prerequisites.” New

Hampshire, 532 U.S. at 751. Rather, they serve as “general guideposts” considered against “all

the relevant equities in any given case.” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719

F.3d 785, 795 (7th Cir. 2013).

The Court declines to apply judicial estoppel here. Much of the analysis with respect to

Defendants’ Heck doctrine argument in the prior motion to dismiss, see [31], applies equally

here. Again, the issues decided at the plea hearing are not identical—and therefore not clearly

inconsistent—to those at issue in this case. The Court will not rehash the entire basis for its prior

ruling except to say that even if Louden admitted to resisting arrest at one point, Louden’s

criminal case never litigated whether Defendants’ actions, particularly those after the arrest, were

objectively reasonable or whether those actions violated any constitutional right. Thus, Louden

did not prevail in a prior ruling that is necessarily inconsistent with allegations in his first

amended complaint.

B. Qualified Immunity

Next, Defendants argue that qualified immunity bars Louden’s excessive force claim.

Qualified immunity protects government officials from civil liability under section 1983 if “their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a

defendant raises a qualified immunity defense, the burden shifts to the plaintiff to show: (1) a

constitutional violation; and (2) that the constitutional right was clearly established when the

alleged violation occurred. Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019).

A plaintiff can establish the second element in one of two ways. First, a plaintiff can

identify a reasonably analogous case that articulates the right at issue and concerns a similar set

of facts. Id. (citation omitted). The case need not be identical, but some settled authority must put

a reasonable officer on notice that his actions violated the Constitution. Id. at 702 (citing

Mullenix v. Luna, 577 U.S. 7, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015)). Alternatively, a

plaintiff can demonstrate that the violation was so obvious that any reasonable person would

have recognized it violated the law. Id. at 701 (citation omitted). Under either approach, existing

precedent must place the statutory or constitutional question “beyond debate.” Id. at 702 (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). Finally, the Court views the constitutional right

in light of the case’s specific context. Mullenix, 577 U.S. at 11-12.

Here, the dismissal based on qualified immunity is unwarranted and premature. First,

Louden’s allegations establish a constitutional violation, as discussed previously. Second, the

constitutional right to be free from excessive force was clearly established at the time of

Louden’s allegations. See Becker v. Elfreich, 821 F.3d 920, 928 (7th Cir. 2016). And though the

right to be free from excessive force must be clear to a reasonable officer at the scene, the

allegations here would indicate to a reasonable officer that the alleged force was excessive. For

instance, Louden alleges that officers choked him after handcuffing him and “physically

manipulated his anus and genitals” after shackling him to a gurney.

Additionally, Defendants’ reliance on the plea hearing is not dispositive. The Court

already determined that the factual basis stipulated at the plea hearing doesn’t cover conduct that

occurred after the arrest. As such, the current factual record before the Court does not provide

conclusive evidence that qualified immunity applies. See, e.g., Backe v. LeBlanc, 691 F.3d 645,

648 (5th Cir. 2012) (because “one of the most salient benefits of qualified immunity is protection

from pretrial discovery,” a court may defer its qualified immunity ruling only if the “pleadings

assert facts which, if true, would overcome the defense of qualified immunity”) (internal

quotation marks omitted). Louden’s allegations, taken as true, could overcome a qualified

immunity defense. The motion to dismiss, therefore, is denied as to Count I.

II. False Arrest

The Fourth Amendment also protects against unlawful detention without probable cause.

Manuel v. City of Joliet, Illinois, 903 F.3d 667, 670 (7th Cir. 2018). The Seventh Circuit makes

clear that the Fourth Amendment protects against unreasonable searches and seizures in the

absence of probable cause—not against some right not to be prosecuted without probable cause.

Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013). The Court construes Louden’s false arrest

claim against this backdrop as a claim for unlawful detention without probable cause.

Defendants invoke the principle identified in Heck v. Humphrey, which bars a claim for

damages under section 1983 that challenges a conviction or imprisonment, or any actions that

would necessarily invalidate a conviction, until the conviction is set aside. 512 U.S. 477, 486-87

(1994). Plaintiff responds that the Court already rejected Defendants’ Heck defense in its ruling

on Defendants’ first motion to dismiss and should not disturb that prior decision. This is partially

true: the Court rejected Defendants’ Heck doctrine defense as it relates to Louden’s excessive

force claim—but not as it relates to a Fourth Amendment false-arrest claim. As such, Heck’s

interplay with the false arrest claim requires a fresh analysis.

To that end, the Court finds that the Heck doctrine does not bar Louden’s false arrest

claim. The Supreme Court explains that Heck precludes a prisoner from raising a claim under

section 1983 “which, if true, would have established the invalidity of his outstanding

conviction.” Wallace v. Kato, 549 U.S. 384, 392 (2007). But Heck doesn’t bar challenges to

searches and seizures, or false arrests, that do not necessarily affect a conviction’s validity. Id. at

397. As a result, the Court must examine what Louden asks for to determine whether he may

pursue his claim or whether it is barred by Heck. Mordi v. Ziegler, 870 F.3d 703, 707 (7th Cir.

2017).

The Seventh Circuit’s decision in Mordi v. Ziegler is instructive on this point. There, the

plaintiff brought claims under section 1983 against officers alleging they did not have probable

cause to initiate a traffic stop against him. Id. at 705. State troopers pulled over the plaintiff while

driving on a highway and cited him for a minor traffic violation. Id. Near the conclusion of the

stop, however, officers asked the plaintiff whether they could search his car for drugs. Id. at 706.

The plaintiff said no. Id. Some 20 minute into the stop, an officer radioed for a drug-sniffing dog,

which arrived 10 minutes later. Id. The dog sniffed the car and altered the officers to drugs. Id.

Officers then searched the vehicle and found crack cocaine in a duffle bag in the bag seat. Id.

Eventually the plaintiff pled guilty to federal drug charges for possession with intent to deliver.

Id. But the plaintiff also filed a civil suit alleging that the officers racially profiled him and did

not have probable cause to prolong the stop. Id. at 706-07.

The Seventh Circuit held that Heck did not bar the plaintiff’s Fourth Amendment claims.

Id. at 707-08. First, the court determined that even if the plaintiff prevailed on his prolonged-

detention and racial-profiling claims, his conviction would still be secure. Id. at 707. Indeed, the

court recognized that “a court’s decision not to suppress illegally seized evidence can lead to a

conviction without blotting out a § 1983 challenge to the seizure.” Id. (quoting Evans v. Poskon,

603 F.3d 362, 363-63 (7th Cir. 2010). This is because courts do not suppress a person’s body. Id.

Second, the Seventh Circuit stated that even where a litigant makes some Heck-barred

contentions, the proper course of action is to carve off any Heck-barred contentions and proceed

with what remains. Id. at 708.

In this case, the Court concludes that Louden’s Fourth Amendment false arrest claim is

not Heck-barred because it does not necessarily imply the invalidity of his criminal conviction.

This case is close, but what Louden is really asking for is a determination that officers did not

have probable cause to approach him initially—not that he did not unlawfully possess a weapon.

As such, a ruling in Louden’s favor would not undermine the validity of his conviction.

To be sure, there are some allegations that cannot be reconciled with the prosecutor’s

factual basis.2 For instance, Louden alleges that he was “visibly unarmed” when officers

approached him. [93] at ¶1. Louden likely meant that a weapon wasn’t visible at the time officers

approached him—but the Court will not permit Louden to argue that he didn’t possess a weapon.

Regardless, Seventh Circuit guidance dictates that the Court carve out any Heck-barred

contentions and allow Louden to proceed on what remains. Louden, therefore, may proceed on a

Fourth Amendment false arrest claim based on allegations that Defendants Geyer and Carter did

not have information from a confidential source that gave them probable cause to approach him.

III. Conspiracy

Count III asserts a claim for conspiracy under 42 U.S.C. § 1983. Under section 1983, a

conspiracy is “a combination of two or more persons acting in concert to commit an unlawful

act, or to commit a lawful act by unlawful means, the principal element of which is an agreement

between the parties to inflict a wrong against or injury upon another, and an overt act that results

in damage.” Scherer v. Balkema, 840 F.2d 437, 441 (7th Cir. 1988). To establish a prima facie

case of civil conspiracy, a plaintiff must show “an express or implied agreement among

defendants to deprive a plaintiff of his or her constitutional rights,” and the “actual deprivation of

those rights in the form of overt acts in furtherance of the agreement.” Id. at 442. Although the

Seventh Circuit rejects a heightened pleading standard for civil conspiracy claims under section

2 The factual basis for Louden’s plea hearing also contains contradictory statements that Defendants did,

in fact, receive information from a confidential source prior to approaching Louden. It is unclear whether

collateral estoppel, a doctrine similar in effect to the Heck-bar, might prevent Louden from disputing

these statements because the parties did not raise that issue. In any event, even if that legal theory applied,

that would be an issue better suited to summary judgment and a complete factual record.

1983, it also states that “the plaintiff must meet a high standard of plausibility” when alleging “a

vast, encompassing conspiracy.” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). The

Court must dismiss a complaint consisting of nothing more than “‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Iqbal, 556 U.S. at 678.

Here, the Court finds that Louden fails to state a claim for civil conspiracy. The first

amended complaint only contains conclusory allegations that fail to adequately allege an

agreement between Carter and Geyer to violate one of Louden’s constitutional rights. Indeed,

Louden doesn’t describe the general purpose behind any alleged conspiracy. In fact, paragraph

43 of the first amended complaint contains the only allegation indicating any agreement or

purpose. It reads: “As described more fully above, Defendants CARTER and GEYER reached an

express or implied agreement to violate Plaintiff’s constitutional rights as described in the

preceding paragraphs.” The Court finds these allegations conclusory and further finds that they

fail to identify any purpose that Defendants agreed to conspire toward or what that conspiracy

sought to accomplish. As such, the Court dismisses Count III.

IV. Inadequate Medical Care

Count IV alleges a claim for inadequate medical care under the Fourth Amendment. To

start, the Court must identify which constitutional provision applies. Defendants cite Greene v.

Pollard, 335 Fed. Appx. 612 (7th Cir. 2009), a case involving the Eighth Amendment, for the

relevant standard applicable to Louden’s inadequate medical care claim. Louden, on the other

hand, cites to no case law and fails to substantively respond to Defendants’ arguments on this

claim. Nevertheless, the Court finds that the Fourth Amendment, not the Eighth or Fourteenth

Amendment (applied in other pretrial detention contexts), provides the applicable constitutional

source of authority.

The Seventh Circuit has held that “the Fourth Amendment governs the period of

confinement between arrest without a warrant and the [probable cause determination][.]” Currie

v. Chhabra, 728 F.3d 626, 629 (7th Cir. 2013). After a probable cause finding is made, the

Fourteenth Amendment protects a pretrial detainee. Id. at 629-30. Since Louden’s allegations

took place between his arrest (without a warrant) and a Gernstein hearing, the Fourth

Amendment applies.

The difference between the Fourth and Fourteenth Amendment is ultimately immaterial

since the standard for both is now the same. See Pulera v. Sarzant, 966 F.3d 540, 550 (7th Cir.

2020). Under either, an arrestee must demonstrate that an official’s actions were “objectively

unreasonable under the circumstances.” Id. Reasonableness, in turn, is determined in light of the

totality of the circumstances. See McCann v. Ogle Cty., 909 F.3d 881, 886 (7th Cir. 2018)

(Fourteenth Amendment); Florek v. Vill. of Mundelein, 649 F.3d 594, 600 (7th Cir. 2011)

(Fourth Amendment). Courts consider four factors when assessing the objective reasonableness

of a police officer’s response to a plaintiff’s medical needs: “(1) whether the officer has notice of

the detainee’s medical needs; (2) the seriousness of the medical need; (3) the scope of the

requested treatment; and (4) police interests, including administrative, penological, or

investigatory concerns.” Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011). A plaintiff

“must also show that the defendants’ conduct caused the harm of which [the plaintiff]

complains.” Id.

In this case, the allegations are sufficient to state a claim for deliberate indifference.

Louden alleges, among other things, that Defendants shattered his front teeth and punctured his

lips and that he sat in the Evanston police station for over two days with untreated, open wounds.

These allegations suffice to show obvious conditions that required medical attention.

Defendants concede that these allegations are obvious enough to warrant medical

attention, but argue that, as non-medical personnel, they can rely on the expertise of medical

professionals regarding the treatment Louden received. Without question, non-medical

professionals are entitled to rely on a medical professional’s judgment without subjecting

themselves to liability under section 1983. See Estate of Perry v. Wenzel, 872 F.3d 439, 459 (7th

Cir. 2017). And Defendants raise salient points that officers transferred Louden to Evanston

Hospital after being arrested, and doctors presumably treated him there before transferring him to

the police station. These arguments may very well carry the day at summary judgment, but the

record is simply insufficient at this stage to grant dismissal based on this affirmative defense.

Accordingly, the Court denies the motion to dismiss with respect to Count IV.

V. Battery and Intentional Infliction of Emotion Distress

Defendants argue two grounds for dismissal of these counts V (battery) and VI (IIED):

(1) the Court should decline to exercise supplemental jurisdiction over Louden’s state-law

claims; and (2) these claims should be dismissed under the Tort Immunity Act. The Court is not

persuaded by either argument. First, the Court sees no good reason to decline exercising

supplemental jurisdiction over Louden’s battery or IIED claim. Defendants argue that Louden

fails to state a claim for his federal-law counts, but the Court disagrees as detailed above and

therefore will continue to exercise supplemental jurisdiction over the remaining state-law claims.

Second, the Court declines to dismiss Louden’s state-law claims based on the Illinois

Local Governmental and Governmental Employees Tort Immunity Act (“Act” or “Tort

Immunity Act”). Under the Act, “[a] public employee is not liable for his act or omission in the

execution or enforcement of any law unless such act or omission constitutes willful and wanton

conduct.” 745 ILCS 10/2-202. The Act defines willful and wanton conduct as “a course of action

which shows an actual or deliberate intention to cause harm or which, if not intentional, shows

an utter indifference to or conscious disregard for the safety of others or their property.” 745

ILCS 10/1-210. This conduct “consists of more than mere inadvertence, incompetence, or

unskillfulness.” Stevenson v. City of Chicago, Case No. 17-cv-4839, 2018 WL 1784142, at *32

(N.D. Ill. April 13, 2018) (internal citations omitted).

The Court finds that dismissal based on the Tort Immunity Act is not warranted at this

time. Louden sufficiently alleges conduct that implicates a conscious disregard for the safety of

others. For example, Louden alleges that officers choked him as he shouted for help, and that

Defendants picked him up and slammed him into the ground causing his teeth to shatter and lip

to split. These allegations are enough to satisfy the definition of willful and wanton conduct

under the Tort Immunity Act. What’s more, like Louden’s excessive force claim, his plea

agreement is not necessarily inconsistent with these allegations—particular the post-arrest

allegations. Accordingly, the Court denies the motion to dismiss with respect to Count V.>

Conclusion

The Court grants in part and denies in part Defendant’s motion to dismiss [94]. The

motion to dismiss is granted with respect to Count II. The motion to dismiss is denied with

respect to Counts I, III, 1V, V, VI, and VII. Defendants’ answer is due on before December 27,

2021.

SO ORDERED. ENTERED: December 13, 2021

HON. JORGE ALONSO_

United States District Judge

3 Because Louden’s excessive force, inadequate medical care, and battery claims remain, dismissal of the

indemnification count (Count VI) is not warranted.

14