United States District Court, Northern District of Illinois, W.D
November 14, 1974
ALBERT REICH, PLAINTIFF,
CITY OF FREEPORT, AN ILLINOIS MUNICIPAL CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on the motions of defendants
Albert Reich, plaintiff, was discharged as a patrolman from the
Freeport Police Department by the Board of Fire and Police
Commissioners of the City of Freeport pursuant to the provisions
of Section 10-2.1-17 of the Illinois Municipal Code
(Ill.Rev.Stat. Ch. 24, Sec. 10-2.1-17 (1971)). The Circuit Court
of Stephenson County entered an order affirming the decision of
the administrative agency.
Plaintiff then appealed to the Appellate Court of Illinois,
Second Judicial Circuit, under various legal theories, including
the allegations: (1) that the Ordinances and Statutes under which
Reich was charged were unconstitutional and (2) that Reich was
denied due process of law during the proceedings before the Board
of Fire and Police Commissioners. The Appellate Court upheld the
actions of the Board and the decision of the Circuit Court. See
Reich v. Bd. of Fire and Police Commissioners, 13 Ill. App.3d 1031,
301 N.E.2d 501 (1973).
Reich's petition for leave to appeal to the Supreme Court of
Illinois was denied. No appeal or petition for writ of certiorari
was taken to the Supreme Court of the United States.
Subsequently plaintiff filed this suit in Federal District
Court alleging violation of his constitutional rights.
Plaintiff's complaint has four separate counts. Count one alleges
that certain ordinances of the City of Freeport are
unconstitutional on their face and asks by way of relief, in
part, that they be declared unconstitutional and the defendants
enjoined from enforcing them. Count two is similar to Count one,
differing only in that it alleges the ordinances are
unconstitutional as applied to plaintiff and asks for similar
relief. Count three alleges that a certain state statute,
Illinois Revised Statutes Chapter 38, Sections 22-23 (1969) is
unconstitutional on its face and as applied to the plaintiff.
Count four is a cause of action under 42 U.S.C. § 1983, a civil
rights action, and under state law alleging arbitrary and
unlawful actions by the defendants (except David Stearns, during
the time January 1971 through April 1971), which resulted in the
plaintiff's discharge from his position as a policeman. The
fourth count asks for money damages.
The Court has reviewed plaintiff's complaint and the history of
this litigation in the state courts. It is the Court's opinion
that there may be merit to a portion of the plaintiff's claim
which alleges that certain ordinances of the City of Freeport
governing the conduct of policemen infringe the right of free
speech guaranteed by the First and Fourteenth Amendments to the
United States Constitution. The ordinances state as follows:
15-114 GENERAL RIGHTS AND DUTIES: a member of the
police department shall:
15-114-3 Not give information relating to
department business to a noncity official without
the approval of a superior officer.
15-114-7 Not discuss or criticize other members, or
any official of the City, except when required by a
15-125 OFFENSES: acts subject to penalty are:
15-125-13 Insubordination or disrespect toward a
superior officer, or toward any official of the
15-125-14 Using coarse, profane or insolent
These ordinances appear to be unconstitutional on their face.
Nevertheless the Court is reluctant to allow the plaintiff to
challenge these ordinances as a guise to establish jurisdiction
in order to challenge his dismissal from the Freeport police
force. It is quite clear that the plaintiff's dismissal is not
really based on his verbal criticism of other officers and public
officials; but, rather, his dismissal stems from his actual
misconduct in possessing marijuana in violation of department
regulations. As the Illinois Appellate Court stated in Reich v.
Board of Fire and Police Commissioners, supra:
"A review of plaintiff's own testimony reveals
that, without department knowledge or authority, he
was in possession of marijuana, that he did not bring
the matter to the attention of the appropriate
officer or turn the evidence in to the department,
and that he subsequently had the `evidence' returned
to the seller. Were we to determine that plaintiff's
possession of the marijuana occurred within the scope
of his duties, he would then have been in violation
of the Code in returning the contraband to the
seller. Conversely, were we to view such possession
as being outside the scope of his duties, he would
there be in violation of the criminal law. Under
either finding, plaintiff was guilty of violating the
Code and the Board's determination in this regard was
not against the manifest weight of the evidence" 301
N.E.2d at 503.
I. THE DISTRICT COURT IS A COURT OF LIMITED JURISDICTION.
Federal courts are courts of limited jurisdiction and are
empowered to hear only those cases which have been entrusted to
them by a Congressional grant of jurisdiction. They have no power
to review the judgment of a state court, except where a
substantial federal question is involved. In such a case, the
final judgment or decree rendered by the "highest court of a
State in which a decision could be had", may be reviewed by the
Supreme Court of the United States pursuant to the provisions of
28 U.S.C. § 1257. But federal district courts are limited to
cases of original jurisdiction and cannot entertain a proceeding
to modify or reverse a state court proceeding. P.I. Enterprises,
Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972). To do so would be
an exercise of appellate jurisdiction. Rooker v. Fidelity Trust
Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923).
When the defendant in the instant case was rebuffed by the
State Courts of Illinois, he chose not to appeal to the United
States Supreme Court. Instead, he filed suit in this federal
court alleging violations of his constitutional rights, in at
attempt to use the Constitution and the Civil Rights Act as tools
to relitigate substantially identical facts and legal contentions
previously decided by the State Courts of Illinois. But
limitations on jurisdiction prevent such a procedure. The
plaintiff cannot circumvent the boundaries imposed upon
the jurisdiction of this Court. The Civil Rights Act cannot be
used as a substitute for the right of appeal. Coogan v.
Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970).
Defendant had an adequate remedy for review of the State Court
determinations by appeal or by petition to the Supreme Court of
the United States for a writ of certiorari. He chose not to
resort to either remedy. His failure to petition the appropriate
forum acted as a waiver of the right to seek reversal of the
State Court determinations. Frazier v. East Baton Rouge Parish
School Board, 363 F.2d 861 (5th Cir. 1966).
II. THE CITY OF FREEPORT AND THE BOARD OF FIRE AND POLICE
COMMISSIONERS WERE IMPROPERLY JOINED AS DEFENDANTS.
A civil rights action brought under 42 U.S.C. § 1983 can only
be directed against a "person". A municipality cannot be liable
for damages under this section and should be dismissed as a party
to the action. Yumich v. Cotter, 452 F.2d 59
(7th Cir. 1971);
Washington v. Brantley, 352 F. Supp. 559 (D.C. Fla. 1972).
Likewise a civil rights action will not lie under this section
against an administrative agency. Monroe v. Pape, 365 U.S. 167,
81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Alexander v. California Court
Director of Correction, 433 F.2d 360 (9th Cir. 1970). Therefore a
civil rights complaint against the Board of Fire and Police
Commissioners of Freeport, a municipal administrative body, must
be dismissed for lack of jurisdiction over the subject matter.
Henig v. Odorioso, 256 F. Supp. 276 (D.C.Pa. 1966), 385 F.2d 491,
cert. denied 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968),
rehearing denied 391 U.S. 929, 88 S.Ct. 1814, 20 L.Ed.2d 671
(1968). In the case of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct.
2222, 37 L.Ed.2d 109 (1973) the Supreme Court stated:
"We find nothing in the legislative history discussed
in [Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961)], or in the language actually used
by Congress, to suggest the generic word `person' in
§ 1983 was intended to have a bifurcated application
to municipal corporations depending on the nature of
the relief sought against them. Since, as the Court
held in Monroe, `Congress did not undertake to
bring municipal corporations within the ambit of' §
1983, [id., at 187], they are outside of its ambit
for purposes of equitable relief as well as for
There is no logical reason why this rule would not also apply
to Administrative Agencies, since they have been held to be
exempt from damage suits for the same reasons as were applied to
III. DEFENDANTS ARE IMMUNE FROM LIABILITY FOR THEIR ACTIONS AS
A public official is not personally liable to one injured as a
consequence of an act performed within the scope of his official
authority and in the line of his official duty. Carroll v. United
States, 267 U.S. 132
, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Where he
is vested with discretion and is empowered to exercise his
judgment in matters brought before him, he is entitled to
immunity from liability to persons who may be injured as the
result of an erroneous or mistaken decision. Sims v. United
States, 252 F.2d 434
(4th Cir. 1958), aff'd 359 U.S. 108
S.Ct. 641, 3 L.Ed.2d 667. This immunity is recognized in both
state, Lusietto v. Kingan, 107 Ill. App.2d 239, 246 N.E.2d 24
in federal judicial decisions. Hampton v. City of Chicago,
484 F.2d 602
(7th Cir. 1973). The United Supreme Court has squarely
held it was not abolished by the Civil Rights Act of 1871. Tenney
v. Brandhove, 341 U.S. 367
, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
Board of Fire and Police Commissioners took the action in
question, they acted in good faith and within the scope of their
authority. They are immune from suit for their official conduct.
Accordingly, it is hereby ordered that defendants' motion to
dismiss is granted.
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