United States District Court, Northern District of Illinois, E.D
July 13, 1973
WANDA JEAN EVAIN, BY HER GRANDFATHER AND NEXT FRIEND, CLAYTON WEBB, PLAINTIFF,
JAMES CONLISK, SUPERINTENDENT OF POLICE ET AL., DEFENDANTS.
The opinion of the court was delivered by: Marovitz, District Judge.
Motion To Dismiss
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)
In addition, we found:
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 403, Memorandum Opinion, p. 1184
(N.D.Ill. June 29, 1973)
Therefore, the only parties remaining in this case are the
Police Officers, who are sued individually and in their
official capacities as the alleged perpetrators of the
unlawful death which gives rise to plaintiff's cause of
The plaintiff alleges, that the killing of her father
created an independent cause of action for the deprivation of
her civil rights. "In determining whether or not plaintiff's
constitutional rights have been deprived, we must look at
everything that transpired." Jennings v. Nester, 217 F.2d 153,
155 (7th Cir. 1955). The only relevant consideration in this
case is the effect of plaintiff's father's death on
Under the Civil Rights Statutes, this Circuit follows the
position that a District Court may not exercise its
jurisdiction unless an individual is deprived of a right,
privilege or immunity under the Constitution. Kamsler v.
M.F.I. Corporation, 359 F.2d 752 (7th Cir. 1966). The question
then becomes whether or not plaintiff has suffered such a
It is quite apparent in Civil Rights litigation that one
individual cannot sue for the deprivation of another's civil
rights. As the Court stated in Mosher v. Beirne, 237 F. Supp. 684
at 687 (E.D.Mo. 1964):
. . Plaintiff's allegations in his complaint
are not such as create a valid cause of action in
him. The effect of those paragraphs is that
plaintiff is seeking on his own motion to correct
wrongs allegedly done to others, but it is
elementary in civil rights litigation that one
cannot sue over the deprivation of another's
civil rights. McCabe v. Atchison, T. & S.F. Ry.
Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169;
State of Mo. ex rel. Gaines v. Canada,
305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Brown v. Board
Trustees of LaGrange Independent School Dist. et
al., 5th Cir., 187 F.2d 20.
To this proposition must be added the exception that when
the deprivation of an individual's rights results in his death
then a cause of action may survive for the benefit of the
estate of the deceased individual under the Civil Rights
provisions, if the applicable state law creates such a
survival action. Brazier v. Cherry, 293 F.2d 401
1961). As the defendants have indicated in their initial
reply, Illinois allows for a survival type cause of action for
wrongful death. The provisions of the Illinois Statute,
Ill.Rev.Stat. Ch. 70, Secs. 1 and 2 provide that suit may be
brought by and in the names of the personal representatives of
the deceased for the benefit of the widow and next of kin.
Ill.Rev.Stat. Ch. 70, § 2.
This provision, therefore, does not create an individual
right for the plaintiff bringing suit, rather it affords a
cause of action for the benefit of the deceased's estate. Agar
Packing and Provision Company v. Becker, 301 Ill. App. 237,
22 N.E.2d 447 (1939). As a consequence, any cause of action
created under the applicable state laws for the death of
plaintiff's father must fail, since she has sued in her own
individual capacity and not as representative of her father's
In addition, the statutory provisions require the filing of
the cause of action within two years of the death as a
condition of liability. Ill.Rev.Stat. Ch. 70, § 2. Since
plaintiff has commenced suit almost five years from the date of
the death, again her cause of action under the applicable state
laws must fail as procedurally deficient.
The effect of the state cause of action, is to create in the
plaintiff an opportunity to bring suit for the benefit of her
father's estate for the deprivation of his civil rights.
However, it does not create an individual cause of action in
the plaintiff for the deprivation of her rights. As a result,
absent a showing of an individually protected right, the
plaintiff's cause of action must be dismissed.
The plaintiff argues that the injury caused by the death of
her father as manifested in her deprivation of care, love,
association, and financial support is sufficient to constitute
a protectible right under the Civil Rights Act. The
allegation, however, must fail, for it does not establish a
violation or deprivation of a right secured by the
Constitution or laws of the United States.
The mere allegation that a tort has been committed is
insufficient in itself to bring plaintiff's claim within the
protection of the Civil Rights Act. This Court has previously
considered the requisite elements of tortious conduct as a
cause of action under the Civil Rights Act in Jenkins v.
Meyers, 338 F. Supp. 383 at 389 (N.D.Ill. 1972), affirmed July
2, 1973, 7th Circuit Court of Appeals, where we found:
5) The fifth category includes cases where there
is no violation of a constitutional right as
such, there was no improper motive and the act
and the result were not intended. The injury in
such a case is the result of a "pure tort" rather
than a constitutional tort, such as personal
injury and such an action cannot be maintained
under 42 U.S.C. § 1983. See Kent v. Prasse, D.C.,
265 F. Supp. 673 (1967) affirmed 385 F.2d 406 (3rd
Thus, even if plaintiff could establish a tortious act, as
to her, as a result of her father's death, her complaint must
still fail. In maintaining jurisdiction under the Civil Rights
Act, the plaintiff must show a deprivation of his rights.
Sarelas v. Sheehan, 326 F.2d 490
(7th Cir. 1963); Jones v.
Bombeck, 375 F.2d 737
(3rd Cir. 1967); Colon v. Grieco,
226 F. Supp. 414 (D.N.J. 1964). Plaintiff in this case has failed
to show any such deprivation.
The Court, therefore, must grant defendant's Motion To
Dismiss finding no actionable deprivation of a federally
protected nature in the unlawful death of
plaintiff's father. The survival action, created by the state
to redress the alleged deprivation of the father's rights,
although cognizable in this Court is not available to the
plaintiff having failed to comply with the procedural
In summary, the Superintendent of Police, James Conlisk and
the City of Chicago are dismissed pursuant to their respective
immunities and the remaining action against the individual
Police Officers is dismissed for plaintiff's failure to state
a claim upon which relief may be granted.
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