United States District Court, Northern District of Illinois, E.D
November 17, 1972
BERNARD R. KUMMER, PLAINTIFF,
ARTHUR BONAREK ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendants' motion to strike and
dismiss the complaint.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983.
Jurisdiction is based on 28 U.S.C. § 1331 and 1343.
The plaintiff is Bernard R. Kummer who resides in Cook County,
Illinois. The defendants are Arthur Bonarek, Ronald Russell and
John Doe Lobes who are all employed as peace officers by the
Sheriff of the County of Cook, State of Illinois.
The plaintiff alleges two causes of action. First that on or
about May 14, 1971 the defendants, while acting under color of
law as peace officers of the Cook County Sheriff's Office, for
no apparent reason arrested or caused to be arrested the
plaintiff. Further the plaintiff alleges that because of his
dress, length of hair, and age, the defendants used
unreasonable and unnecessary force to restrain him which
resulted in severe injury to the plaintiff. Second, that after
this alleged administration of summary punishment, the
defendants caused criminal charges to be instituted against
him and that such charges were made recklessly, without
probable cause, and for the purpose of denying plaintiff equal
protection of the law. In each Count, the plaintiff seeks
damages in the sum of $100,000 against the defendants jointly
and severally plus the cost of maintaining this action.
The defendants in support of their motion to strike and
dismiss the complaint contend:
1. That the complaint does not allege sufficient
facts to constitute a cause of action against
the defendants on which relief can be
2. That the plaintiff's claim is barred because
he failed to serve proper notice to the
County as required under Ill. Rev. Stat. ch.
85 § 8-102.
This Court is not persuaded by the defendants' arguments.
I. The Plaintiff's Complaint Properly States a Cause of Action
It is well settled that the requirements for a sufficient
complaint under 42 U.S.C. § 1983 are that the defendants while
acting under the color of
state or local law subjected the plaintiff to a deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States. See Monroe v.
Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961);
Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965). (The
Basista case contained facts similar to the facts alleged in
the case at bar, i. e. the unreasonable and illegal arrest, use
of excessive force in performing official duties.)
In his complaint, plaintiff has alleged both that the
defendants were acting under color of state law and that in so
performing their duties they wrongfully deprived him of his
constitutional rights. Therefore the complaint does properly
state a cause of action upon which relief could be granted.
II. The Plaintiff has Complied with Chapter 85 Section 8-102 of
the Illinois Revised Statutes
Chapter 85 Section 8-102 of the Illinois Revised Statutes
"Within 6 months from the date that the injury or
cause of action referred to in Sections 8-102 and
8-103, was received or accrued, any person who is
about to commence any civil action for damages on
account of such injury against a local public
entity, or against any of its employees whose act
or omission committed while acting in the scope
of his employment as such employee caused the
injury, must personally serve in the Office of
the Secretary or Clerk, as the case may be, for
the entity against whom or against whose employee
the action is contemplated a written statement,
signed by himself, his agent or attorney, giving
the name of the person to whom the cause of
action has accrued, the name and residence of the
person injured, the date and about the hour of
the accident, the place or location where the
accident occurred, the general nature of the
accident, the name and address of the attending
physician, if any, and the name and address of
the treating hospital or hospitals, if any."
The alleged "injury" occurred on or about May 14, 1971. The
plaintiff on November 2, 1971 within the statutory 6 month
period, served requisite notice on the Cook County
Clerk.[fn**] Therefore the plaintiff has complied with the
requirements of Ill. Rev. Stat. ch. 85 § 8-102.
Thus the complaint properly states a cause of action and the
plaintiff's claim is not barred by Ill. Rev. Stat. ch. 85
Accordingly, it is hereby ordered that the Defendants'
Motion to Dismiss and Strike the Complaint is denied.
[fn**] Plaintiff has submitted to this Court a copy of a
letter which he served on the Clerk of Cook County which was
date stamped by the Comptroller and Clerk of the County as of
November 2, 1971.
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