The opinion of the court was delivered by: Marovitz, District Judge.
The plaintiff, Wanda Jean Evain, by her grandfather and next
friend brings this cause of action seeking damages pursuant to
28 U.S.C. § 1343 alleging a deprivation of her civil rights
under 42 U.S.C. § 1983 and 1988 and a denial of her equal
protection and 14th amendment rights and a denial of rights,
privileges and immunities as a citizen of the United States and
the State of Illinois.
Plaintiff alleges that on April 6, 1968 at 6437 South
Halsted Street in the City of Chicago, one or more of the
individually named Police Officers shot and killed her father,
Clayton Webb, Jr. Plaintiff contends that as a result of this
death she has suffered a deprivation of her civil rights and
equal protection of the laws e.g., pain and suffering, mental
anguish and loss of love, care, affection and financial
support. To redress this alleged wrong, plaintiff seeks
damages from defendants individually and in their official
capacity totaling $1,200,000.
The defendants, by way of a Motion To Dismiss, have taken
the position that the plaintiff does not have standing to
bring this cause of action, since the only enforceable claim
available to plaintiff would be under the provisions of the
Illinois Wrongful Death Statute. Defendants contend that under
these provisions, plaintiff has failed to qualify as an
executor of the estate of the deceased and has failed to
comply with the two year filing condition of liability, this
suit having been brought almost five years after the
occurrence of the death.
In addition, defendants assert that the damages sought by
plaintiff are not recoverable in a wrongful death action, that
Superintendent Conlisk can not be held liable under 42 U.S.C. § 1983
and 1988 under the doctrine of respondeat superior and
that the City of Chicago is not a "person" within the meaning
of 42 U.S.C. § 1983.
The plaintiff in answer to the defendants Motion To Dismiss,
argues that her cause of action is not brought under the
Illinois Wrongful Death Statute but is an independently
cognizable action for the deprivation of her civil rights. The
plaintiff further answers that since the cause of action is
brought in her own right a five year statute of limitations
applies and the damages sought may be recovered.
Defendants have filed a second reply to plaintiffs Answer to
the Motion To Dismiss and now contend that even if the
plaintiff's cause of action is not brought as a Wrongful Death
Action, the cause must still be dismissed since the plaintiff
can not show any deprivation of her rights. Assuming the death
of her father was as a result of a deprivation of his civil
rights, the defendants contend plaintiff can not show any
illegal action as to her and as a consequence her cause of
action must fail.
Taking the plaintiff's allegations as true for purposes of
defendant's Motion To Dismiss, the Court must decide if as a
result of the alleged illegal and willful killing of
plaintiff's father, she has been deprived of her civil rights.
Before reaching this issue, however, it is necessary to
consider who can claim official immunity and who are the
proper parties in this case.
The plaintiffs have brought suit against the City of
Chicago, a Municipal Corporation, James Conlisk,
Superintendent of Police and Police Officers Clement Skalski,
Roman Kugelman, Joseph Cipich, Michael O'Clock, John Doe and
Richard Roe, individually and in their official capacity. On
the Court's own motion, defendant, City of Chicago, has been
dismissed under the considerations of municipal immunity. In
addition, we find it necessary to dismiss defendant Conlisk
absent a showing of his personal involvement in the alleged
injury suffered by the plaintiff.
This Court has recently considered the doctrine of municipal
immunity and the immunity of supervisory personnel in Boyd v.
Adams, No. 73 C 403, 364 F. Supp. 1180, decided on June 29,
1973. In an extensive opinion, we commented upon the most
recent Supreme Court decisions and found:
The United States Supreme Court, therefore, has
interpreted 42 U.S.C. § 1983 and 1988 in terms of
municipal liability to prevent suits against such
political subdivisions whether for damages or
equitable relief in all cases, thereby granting
full immunity under these sections. Boyd v. Adams,
No. 73 C 403, Memorandum Opinion, p. 1184.
(N.D.Ill. June 29, 1973)
Thus, without direct action causing injury to the
plaintiff supported by allegations of the same,
defendant Conlisk can not be sued as a proper
defendant under 42 U.S.C. § 1981 et seq. Boyd v.
Adams, No. 73 C ...