The opinion of the court was delivered by: Marovitz, District Judge.
Motion for Summary Judgment
This is a civil action for damages based upon a case of alleged
police brutality, and predicated on the Fourth, Fifth, and
Fourteenth Amendments to the U.S. Constitution and
42 U.S.C. § 1983. The defendants in this case are Michael Winfield, the
patrolman charged with the actual brutalization; William Leonard,
the patrolman who, it is alleged, witnessed Winfield's actions
but did nothing to prevent or halt them; and James B. Conlisk,
Jr., Superintendent of Police of the City of Chicago at the time
of the foregoing occurrence and for some time prior thereto. Of
Conlisk, the plaintiffs complain as follows:
At the time of the foregoing occurrence and for
some time prior thereto, defendant CONLISK was the
Superintendent of Police of the City of Chicago, and
had the duty to discipline and control Chicago police
officers and to initiate discharge proceedings
against officers whose conduct warranted termination
of their police employment. On information and
belief, prior to the occurrence set forth above
defendant WINFIELD had been the subject of a large
number of complaints of abusive conduct toward
citizens and otherwise had complied an employment
history indicating that he was likely to engage in
abusive conduct toward citizens. Despite having
notice of WINFIELD's complaint record and employment
history, CONLISK failed to seek WINFIELD's discharge,
to assign him to duties in which he would not have
the opportunity to mistreat citizens, or otherwise to
prevent WINFIELD from engaging in abusive conduct
Defendant Conlisk now moves for summary judgment, stating as
grounds therefore: (1) that he did not personally participate in
or direct Winfield's beating of the Moons, (2) that the doctrine
of respondeat superior does not apply in a § 1983 action, and
(3) that Conlisk may not be held accountable in this cause of
action for damages under the Civil Rights Act for his alleged
failure to train, supervise, or discipline the defendants who
were employed by the City of Chicago.
Plaintiffs have no dispute with defendant Conlisk as to the
first two grounds; however, the authorities are conclusive that
Conlisk can be held liable under § 1983 for his own personal
negligent conduct which was a proximate cause of the Moons'
injuries. Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972); Schnell v.
City of Chicago, 407 F.2d 1084 (7th Cir. 1969); Roberts v.
Williams, 456 F.2d 819 (5th Cir. 1972); Whirl v. Kern,
407 F.2d 781 (5th Cir. 1969); Huey v. Barloga, 277 F. Supp. 864 (N.D.Ill.
1967); Carter v. Carlson, 447 F.2d 358 (D.C.Cir. 1971).
Negligent liability generally arises in the context
of affirmative action. The defendant is deemed
culpable where he has acted and his acts do not
conform to the standard of a reasonably prudent man
as judged against the community ideal of reasonable
behavior. See Prosser, Torts §§ 53, 54 (3d ed. 1964).
The defendant is not usually held to be responsible
for inaction. However, where the defendant is under
some affirmative duty to act and he fails to act
accordingly, he may be held negligently responsible
for his omission. He is responsible if his omission
is unreasonable in light of the circumstances. Huey
v. Barloga, 277 F. Supp. 864, 872 (N.D.Ill. 1967); see
Symkowski v. Miller, 294 F. Supp. 1214, 1217 (E.D.Wis.
That Conlisk had some affirmative duty is also clear. The
Superintendent of Police has the duty and authority to make
findings and impose penalties in misconduct cases. Conlisk's
authority included the power to indefinitely suspend Winfield
while seeking his discharge by the Police Board, or to assign
Winfield "to some other duty where he is under close supervision
and has limited contact with the public". General Order 67-21
(IV)(C) of the Police Department.
Plaintiffs have raised a genuine factual issue as to Conlisk's
possible negligence in his failure to act. Based upon the Chicago
Police Department documents that constitute the misconduct
history and personnel file of defendant Winfield, charges have
been set forth that within a two-week span, Conlisk had before
him five separate misconduct complaints against Winfield which
had been sustained by all subordinate investigation levels. Four
of the cases concerned physical abuse or malicious or threatening
conduct toward civilians. In two of the cases it had been found
that Winfield committed crimes (perjury and battery) and his
District Commander had recommended discharge. A third file warned
that Winfield had been involved in a series of instances of
"questionable mental stability."
While these files were personally before him, Conlisk also had
notice of eight other misconduct complaints against Winfield.
Conlisk further had notice that because of a preemployment
assault conviction, the negative recommendation of a previous
employer, and the falsification of his police application, it had
been recommended under the administration of O.W. Wilson that
Winfield not be employed as a policeman.
This court has no intention of pre-judging the case before us.
It may well be that grounds will be developed in discovery and at
trial which will exonerate defendant Conlisk from the allegations
against him; we have no way to foresee what extenuating
circumstances might have prevailed at the time. For purposes of
this motion, however, it is possible that a jury might find that
Conlisk unreasonably failed to fulfill his affirmative duties
with respect to Michael Winfield, and that ...