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ASHENHURST v. CAREY

March 16, 1973

MARTHA ASHENHURST, A MINOR, BY JULIA HALL, HER NEXT FRIEND, PLAINTIFF,
v.
JOHN CAREY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on defendant James J. Stokes' motion to strike and dismiss the complaint.

This is a civil rights action instituted under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. The plaintiff, Martha Ashenhurst, is a minor and a citizen of the United States of America. The defendants now remaining are John Carey and James J. Stokes, Chicago Police Officers.

In the complaint the plaintiff alleges, inter alia, the following facts:

  1. The defendants, employees of the City of Chicago,
     deprived the plaintiff of her civil rights under
     color of state law.
  2. On May 16, 1971, at approximately 10:15 P.M.
     defendant Carey ordered and forced the plaintiff
     to accompany him to the 21st District Police
     Station. The plaintiff was held incommunicado by
     the defendants Carey and Stokes until 1:30 A.M.
     the following morning.
  3. The defendants Carey and Stokes, without legal
     justification, deprived the plaintiff of her right
     to freedom from illegal seizure of her person;
     freedom from unlawful arrest without evidence in
     support thereof; freedom from illegal detention;
     and freedom from physical abuse, coercion and
     intimidation.

The plaintiff seeks damages in the amount of $25,000 plus the costs of maintaining this action.

The defendant Stokes, in support of his motion, contends (1) that the court lacks jurisdiction over the subject matter and the parties, and (2) plaintiff has failed in her complaint to state a claim upon which relief can be granted against him. James J. Stokes has also submitted to this Court an affidavit which states in relevant part:

The plaintiff, in opposition to the defendant's motion, contends that there is merely a conflict in the plaintiff's and the defendant's version of what transpired, which results in a factual issue to be determined at trial.

This Court, on November 30, 1972, has already held that it has jurisdiction over this action and that the plaintiff's complaint set forth with sufficient specificity the necessary elements for a cause of action against defendants Carey and Stokes. See Ashenhurst v. Carey, 351 F. Supp. 708 (N.D.Ill. 1972).

However, as to the claims based on defendant's use of scurrilous and obscene language, it is the opinion of this Court that the alleged use of such language by the defendants Stokes and Carey does not constitute a deprivation of plaintiff's civil rights. There is no constitutional right to be free from obscene or insulting language. The fact that in the instant action a minor was subjected to such "obscene" language does not change the essential character of the alleged right violated and does not transform it into a right secured by the Constitution. Thus, while the alleged use of obscene language by these defendants may have been uncouth, it is not unconstitutional or a deprivation of civil rights. Johnson v. Hackett, 284 F. Supp. 933 (E.D.Pa. 1968). See also, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and Brandenberg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

As to the other allegations of the complaint, it is the opinion of this Court that the plaintiff has stated a claim upon which relief can be granted and ...


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