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Duzynski v. Nosal

November 21, 1963

ANNA DUZYNSKI, PLAINTIFF-APPELLANT,
v.
VICTORIA NOSAL, ET AL., DEFENDANTS-APPELLEES



Author: Major

Before SCHNACKENBERG, SWYGERT and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This action is brought by plaintiff, Anna Duzynski, to recover damages occasioned by the alleged negligent and wilful acts of the various defendants and for the wrongful deprivation by such defendants of her constitutional and civil rights, all of which acts resulted in her wrongful commitment to the Chicago State Hospital as a mentally ill person.

Plaintiff and her husband, Michael,*fn1 were taken into custody October 8, 1960, by Chicago police officers. Under circumstances hereinafter related, separate petitions were filed on October 8, against plaintiff and her husband, by defendant Reines, a clerk in the County Court of Cook County, Illinois, in which it was alleged on information and belief that plaintiff and her husband were in need of mental treatment and were mentally ill persons, incapable of managing and caring for their own estate.

October 17, 1960, an order was entered by the Judge of the Cook County Court in which it was found that plaintiff was "a mentally ill person, incapable of managing and caring for her own estate," and it was ordered that she be committed to the Department of Public Welfare for admission to Chicago State Hospital, as provided in the Illinois Mental Health Code (hereinafter referred to as the Code). Chap. 91 1/2, Sec. 5-5, Ill.Rev. Stats.1959. Pursuant to this order she was committed to and confined in said institution until November 29, 1960 and on March 14, 1961, was by order of the same Court granted an "absolute discharge as recovered."

Defendants Dr. John Doe (whether this name is real or fictitious we are not advised) and Andrew Moziak were not served with process and the cause as to them was dismissed by the District Court on its own volition.*fn2 The complaint as to all other defendants was dismissed for failure to state a claim upon which relief could be granted. Plaintiff appeals from this order. In this Court, one brief was filed on behalf of the defendants Reines and Kast and other on behalf of the defendants Foley and Skorodin. No brief was filed on behalf of the defendants Victoria Nosal, Frank Nosal, Jane Sobolak, Mary Mikolazczyk and Simon Mikolazczyk. (These parties will sometimes be referred to as the lay defendants.)

Jurisdiction is asserted by reason of diversity of citizenship (28 U.S.C.A. § 1332) and, as to certain of the defendants, under Title 42 U.S.C.A. §§ 1983, 1985 and 1986, and Amendment 14 to the United States Constitution.

We recognize, of course, that this Court is obligated, as was the District Court, to treat as a verity all well pleaded factual allegations of the complaint in determining if an action was stated which would entitle plaintiff to relief. However, a careful study of the complaint is convincing that many of its allegations are immaterial, others are of a conclusory nature and still others, even if proven, would be of no benefit to plaintiff. We shall, therefore, attempt to summarize the allegations of the complaint and the exhibits attached thereto which we think are material.

We shall first analyze the complaint as it relates to the lay defendants. Following the allegations designed to show diversity jurisdiction, the complaint alleges that in 1957, plaintiff and her husband came to this country from Germany and thereafter resided in the City of Chicago; that prior thereto they had become acquainted with the defendants Simon and Mary Mikolazczyk and, through them, after their arrival here, with Frank and Victoria Nosal. It is alleged that plaintiff and her husband were possessed of a limited education, were not fluent in the English language and relied upon the Mikolazczyks for advice and guidance. It is alleged that plaintiff and her husband accumulated $4500 which, except for $380, was deposited in a bank. This latter amount was retained by them in their apartment, with knowledge of Frank Nosal and Moziak. On October 5, 1960, plaintiff discovered that this money was missing and suspected either Moziak or Frank Nosal, or both, of taking it. Moziak occupied an apartment directly below that of plaintiff and, on October 8, 1960, plaintiff discovered he was in his apartment and, in an effort to contact him, rushed down an outside stairway, falling against and breaking a window pane in his apartment. It is alleged that thereafter "one of the defendants, or some other person, notified the Chicago Police Department of this incident."

It is alleged that these lay defendants engaged in a conspiracy "to deprive the plaintiff and her deceased husband of their money and personal possessions, and in furtherance of said conspiracy did wrongfully, illegally, maliciously and tortiously complain to certain municipal authorities of the City of Chicago that the plaintiff was guilty of breaking and entering the apartment of one of the defendants and did furnish the investigating police with false and misleading information calculated to cause the arrest and/or confinement of the plaintiff and her husband." It is alleged that pursuant to the false and malicious information plaintiff and her husband were arrested and "in furtherance of the aforesaid conspiracy, they were confined as mentally ill persons and were thereafter declared to be mentally ill, which as a result of said adjudication, the plaintiff and her husband were committed and confined in the Chicago State Hospital."

There are no other allegations in the complaint which relate to or connect these lay defendants with plaintiff's adjudication or commitment. It will be noted that there is no allegation as to who furnished the police with the false and malicious information; in fact, as alleged, it might have been "some other person." What the information consisted of is not divulged, and neither is the name of any officer disclosed. The officers were called because of plaintiff's alleged breaking and entering of an apartment of one of the defendants. Whether the officer or officers took plaintiff and her husband into custody lawfully or unlawfully is not shown and it must be presumed, under the circumstances, that their action was proper. There is nothing alleged that these lay defendants had anything to do with or took any part in the proceedings which followed and which resulted in plaintiff's commitment.

The next mention of these defendants follows the allegations concerning the other defendants in connection with the proceedings which culminated in plaintiff's commitment. It is alleged that the defendants Simon and Mary Mikolazczyk promised to secure her release from the hospital providing she turned over to them her money; that on November 29, 1960, they secured her release, went with her to the bank in which her to the bank in which her funds were deposited, directed her to withdraw said funds, which she did, some of which were given to these two defendants. From the sum withdrawn, $1150 was paid to an undertaker for the funeral and burial expenses of her husband. The balance was retained by the Mikolazczyks, a portion of which was turned over to their daughter, Jane Sobolak (here mentioned in the complaint for the first time). It is alleged that subsequently plaintiff was paid $2000 of the amount asserted to have been unlawfully retained and that the Mikolazczyks still possess $1350 rightly belonging to her.

The allegations do not show that these defendants either individually or in concert initiated or took any part in the proceedings which resulted in plaintiff's commitment. Obviously, no action is stated against them under any provision of the Civil Rights Act, and it is not so contended. Her claim against these defendants appears to be based on the contention that they committed a tortious act by depriving her of her money. In our judgment, she is entitled to recover nothing more than the amount alleged to have been unlawfully taken and retained. Thus, the complaint on its face shows that the necessary jurisdictional amount is not involved. We hold that the complaint was properly dismissed as to the lay defendants.

This brings us to a consideration of the action alleged against the defendants Reines, Skorodin, Foley, Kast and Doe, each of whom is alleged to have performed some act in the proceedings which culminated in the court Order of Commitment. The acts of ...


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