                        NONPRECEDENTIAL DISPOSITION
               To be cited only in accordance with Fed. R. App. P. 32.1




              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                     Argued April 6, 2007
                                  Decided November 10, 2008

                                             Before

                             RICHARD A. POSNER, Circuit Judge

                             JOEL M. FLAUM, Circuit Judge

                             TERENCE T. EVANS, Circuit Judge

No. 06-3296

WILLIAM O. ATKINS,                                         Appeal from the United States
           Plaintiff-Appellee,                             District Court for the
     and                                                   Northern District of Illinois,
                                                           Eastern Division.
ADAM ATKINS,
         Plaintiff,
                                                           No. 05 C 6109
       v.

COUNSELOR ANDREA PICKARD,                                  Milton I. Shader,
GERALD REESE, SAMUEL NANCE,                                Judge.
and WARDEN DEIRDRE BATTAGLIA,
          Defendants-Appellants,
      and

CITY OF CHICAGO et al.,
            Defendants.

                                              ORDER

        In an opinion issued today (our appeal number 07-2757) we reversed the district court’s
order dismissing this case. In summarizing the facts, we wrote:
No. 06-3296                                                                                     2


                   In October 2003 Chicago police stopped a car driven by Adam
               Atkins. His brother William Atkins was a passenger. The police
               released Adam but arrested William on the basis of a parole-
               violation warrant bearing his name and his Illinois Department
               of Corrections identification number. He was held at the police
               station overnight and then transferred to the custody of the
               Department of Corrections, which placed him in the state prison
               at Joliet. From the moment of his arrest William Atkins
               steadfastly denied that he was the William Atkins named in the
               warrant. He was released from the Department’s custody after
               37 days. He brought this suit against the arresting officers, prison
               guards, and others, mainly contending that the Department lacks
               proper procedures for determining mistaken identification, but also
               claiming that his arrest was illegal and that he was mistreated
               while at Joliet.

       Unfortunately, Mr. Atkins died during the proceedings in the district court.
Subsequently, the district court dismissed the case because a proper party--Mr. Atkins’ widow,
Brandie Atkins--was not timely substituted as the plaintiff. That order was reversed in our
opinion today.

        Now back to the complaint which was filed in 2005. In answering Atkins’ complaint,
the state defendants asserted, among other things, the affirmative defense of qualified immunity.
Ordinarily, that defense is addressed when (and if) defendants move for summary judgment. But
that wasn’t what happened here. Instead, Atkins filed a motion to strike the qualified immunity
defense from the defendants’ answer. Atkins’ motion was granted, the defense was stricken, and
the state defendants took an appeal from the district court’s order (our appeal number 06-3296,
the subject of this order).

         On April 6, 2007, after Mr. Atkins had passed away and before Brandie Atkins was
inserted into his shoes to continue the case, we heard oral arguments on the State’s appeal of
the order striking its qualified immunity affirmative defense from the complaint. We think the
district court jumped the gun and committed error in issuing that order. The order was based
on a slim “motion to strike” under Rule 12(f), a rule aimed at a pleading that contains “an
insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” The rule
is not a good fit for resolving issues like qualified immunity which often turn on facts yet to be
developed. Accordingly, the order is REVERSED and the case REMANDED for further
proceedings, now with Brandie Atkins at the controls.
