United States District Court, Northern District of Illinois, E.D
January 13, 1975
LEWIS HOBBY AND TERRY BELL, PLAINTIFFS,
THURL BRADLEY AND ROSEMARY RICHTER, DEFENDANTS.
The opinion of the court was delivered by: Julius J. Hoffman, Senior District Judge.
MEMORANDUM OF DECISION
This is a civil rights action based on conduct arising out of
mistaken identity. The defendants have moved to dismiss the
amended complaint on the ground that it fails to state a claim
upon which relief can be granted.
The amended complaint contains, among others, the following
On April 28, 1974, plaintiffs Lewis Hobby and Terry Bell were
sitting in Hobby's parked automobile. As Hobby attempted to start
the automobile, the defendants, "acting under color of authority
as [Sheriff's] Police Officers, . . . fired at plaintiffs with
pistols," doing so "without just cause or provocation" and "with
the intention of seriously wounding them." "[I]n an effort to
avoid being wounded," plaintiffs abandoned the automobile and
fled to a nearby Chicago police station. When the defendants
arrived at the station they explained "that they had mistaken
[plaintiffs] for other persons who [were] earlier [involved in]
committing a crime and had been in error in firing . . . at
them." (Amended Complaint, pars. 4-7). The plaintiffs claim that
such conduct by officers acting under color of state law has
deprived them of rights, privileges, and immunities guaranteed
each citizen by the "Fourth, Fifth, and Fourteenth" Amendments to
the United States Constitution. (Amended Complaint, par. 11).
Although expressing reservations about the appropriateness of
the label, modern commentators adhere to the proposition that the
Federal Rules of Civil Procedure sanction "notice" pleading.
E.g., see Wright & Miller, Federal Practice and Procedure:
Civil § 1202. The Seventh Circuit also adheres to this
proposition. In the words of that Court:
"The complaint is designed to apprise the defendant
of the incident out of which a cause of action arose
and the general nature of the action. The relevant
facts may be determined by discovery, with the
pleadings being liberally construed so as to do
substantial justice and facilitate a proper decision
on the merits." Roberts v. Acres, 495 F.2d 57 at
58-59 (7th Cir. 1974).
The same concept carries forward into situations where a motion
to dismiss is employed to attack the sufficiency of a complaint.
For example, in Conley v. Gibson, 355 U.S. 41
, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957), Justice Black wrote:
"In appraising the sufficiency of the complaint we
follow, of course, the accepted rule that a complaint
should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which
would entitle him to relief." 355 U.S. at 45-46, 78
S.Ct. at 102.
As for civil rights complaints specifically, the Seventh Circuit
demands that they be accorded a liberal construction. Roberts v.
Acres, 495 F.2d 57
, citing Eaton v. Bibb, 217 F.2d 446
1955) and Birnbaum v. Trussell, 347 F.2d 86
(2nd Cir. 1965).
In Roberts, a civil rights action brought by an administrator
for the death of his decedent who was shot, allegedly
"without right or provocation," by a village police officer, the
Seventh Circuit reversed a District Court order which had allowed
defendant's motion to dismiss for failure to state a claim.
Quoting from Marshall v. Sawyer, 301 F.2d 639 at 646 (9th Cir.
1962), the Seventh Circuit set down the requirements for a
sufficient complaint under Section 1983:
"The only elements which need to be present in order
to establish a claim for damages under the Civil
Rights Act are that the conduct complained of was
engaged in under color of state law, and that such
conduct subjected the plaintiff to the deprivation of
rights, privileges, or immunities secured by the
Constitution of the United States." 495 F.2d at 59.
In United States v. Classic, the Supreme Court ruled that
"[m]isuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law, is action taken `under color of' state law."
313 U.S. 299 at 325-326, 61 S.Ct. 1031 at 1043, 85 L.Ed. 1368 (1941).
In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961), the Court concluded that the meaning given "under color
of" law in the Classic case and adhered to in Screws v. United
States, 325 U.S. 91 at 108-113, 65 S.Ct. 1031, 89 L.Ed. 1495 and
Williams v. United States, 341 U.S. 97 at 99, 71 S. Ct. 576, 95
L.Ed. 774 was the correct one, and applied this meaning to the
phrase as used in Section 1983. The Court also ruled that to be
compensable under Section 1983 an act need not have been
committed with "a specific intent to deprive a person of a
federal right," and that as a civil remedy, Section 1983 "should
be read against the background of tort liability that makes a man
responsible for the natural consequences of his actions." 365
U.S. at 187, 81 S. Ct. at 484.
In this Circuit, the sufficiency of a civil rights complaint
must be examined in the light of all these principles.
In the complaint in question, plaintiffs have alleged that at
all times pertinent, the defendants acted in their official
capacities as Sheriff's Police Officers; that under color of the
laws of Illinois and its municipal subdivisions, the defendants,
without just cause or provocation, did fire pistols at
plaintiffs. Such allegations are sufficient to establish that the
defendants "acted under color of state law." Roberts v. Acres,
495 F.2d 57, 59 (7th Cir. 1974); Monroe v. Pape, 365 U.S. 167,
187, 81 S.Ct. 473, 5 L.Ed.2d 492; Screws v. United States,
325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495; Geach v. Moynahan,
207 F.2d 714 (7th Cir. 1953).
Plaintiffs have also alleged that defendants fired at them
while they were sitting in an automobile owned by plaintiff
Hobby. The defendants have not asserted that plaintiffs were in
the act of committing a crime. Contrariwise, the amended
complaint contains allegations that defendants "stated" they had
mistaken plaintiffs for other persons who were earlier involved
in committing a crime and had been in error in firing at them.
The essence of these allegations is that defendants failed to
take the steps necessary under the law to insure that plaintiffs
were the suspects sought. The use of deadly force under such
circumstances is sufficient to state a claim that plaintiffs were
deprived of the right to due process guaranteed each citizen by
the Fourteenth Amendment. See, e.g., Joseph v. Rowlen,
402 F.2d 367 (7th Cir. 1968); Morgan v. Labiak, 368 F.2d 338 (10th Cir.
1966); Hardwick v. Hurley, 289 F.2d 529 (7th Cir. 1961); Coleman
v. Johnston, 247 F.2d 273 (7th Cir. 1957); Davis v. Turner,
197 F.2d 847 (5th Cir. 1952); Love v. Davis, 353 F. Supp. 587 (W.D.La.
1973); cf. Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970).
Finally, as to defendants' claim that damage to plaintiff's
automobile (Amended Complaint, par. 9) is not cognizable under
Section 1983, it is sufficient to note that the rights protected
under this statute are not limited to
what are commonly termed "personal" rights. Relief under the
Civil Rights Act is limited only by the confines of the
Fourteenth Amendment itself. The Supreme Court underscored this
proposition in the case of Lynch v. Household Finance Corp.,
405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). In Lynch, an
action under Section 1983, the plaintiff sought declaratory and
injunctive relief against Connecticut statutes which authorized
summary pre-judicial garnishment of funds. A three-judge federal
court dismissed the cause on the ground that it lacked
jurisdiction because 28 U.S.C. § 1343, which grants federal
courts jurisdiction over civil rights suits, only applies to
"personal," and not "property" rights. [318 F. Supp. 1111
(D.Conn. 1970)]. In rejecting this reasoning, the Supreme Court
"[T]he dichotomy between personal liberties and
property rights is a false one. Property does not
have rights. People have rights. The right to enjoy
property without unlawful deprivation, no less than
the right to speak or the right to travel, is in
truth, a `personal' right, whether the `property' in
question be a welfare check, a home, or a savings
account. In fact, a fundamental interdependence
exists between the personal right to liberty and the
personal right in property. Neither could have
meaning without the other. That rights in property
are basic civil rights has long been recognized."
(citations omitted) 405 U.S. at 552, 92 S.Ct. at
Even if this is, as defendants contend, a state property claim
couched in federal terms, the doctrine of pendent jurisdiction
applies, for the pending federal claim has already conferred upon
this Court the requisite subject matter jurisdiction. As the
federal and state claims both "derive from a common nucleus of
operative fact" and are such that the plaintiff "would ordinarily
be expected to try them . . . in one judicial proceeding" [the
test set forth in the lead case of United Mine Workers v. Gibbs,
383 U.S. 715
, 725-726, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218
(1966)], this Court, upon "considerations of judicial economy,
convenience, and fairness to litigants", has discretion to hear
the claim. See, e.g., Davis v. Coffee City, Texas, 356 F. Supp. 550,
553 (E.D.Tex. 1972); Drennan v. City of Lake Forest,
356 F. Supp. 1277
(N.D.Ill. 1972). This latter (vs. "federal claim")
approach would, of course, be consistent with plaintiffs' theory
that the damage allegedly done to Hobby's automobile rose out of
and was one in a chain of events set in motion by the alleged
case of mistaken identity.
Defendants' motion must therefore, in all respects, be denied.
© 1992-2003 VersusLaw Inc.