United States District Court, Northern District of Illinois, E.D
March 4, 1975
UNISE GAMBLING, PLAINTIFF,
GEORGE CORNISH ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lynch, District Judge.
MEMORANDUM OF DECISION
Plaintiff has brought this action for deprivation of her
constitutional rights under 42 U.S.C. § 1983 and the
Fourteenth Amendment against the City of Chicago and several of
its police officers who allegedly sexually assaulted
her. While plaintiff concedes that the City of Chicago is not a
"person" within the meaning of 42 U.S.C. § 1983, she does
contend that a cause of action exists against the City directly
under the Fourteenth Amendment. The cause now comes before the
Court on the City's motion to dismiss for failure to state a
claim upon which relief can be granted.
Count I of the Complaint relates, in pertinent part, as
Defendants George Cornish and Stephen Webster, at all
times relevant to this Complaint, were duly
appointed, qualified and acting police officers of
the City of Chicago, were agents of the City of
Chicago, and engaged in the conduct complained of in
the course and scope of their employment as police
Defendant City of Chicago is an Illinois municipal
corporation. At all times relevant to this Complaint,
the City of Chicago employed defendants Cornish and
Webster as police officers, vested in them the
authority of police officers, and provided each of
them with an official badge and identification card,
which designated and described them as officers of
the City's Department of Police. Defendants Cornish
and Webster engaged in the conduct complained of in
the name of and while acting as agents of the City of
Each of the defendants engaged in the conduct
complained of under color and pretense of the
statutes, ordinances, regulations, customs and usages
of the City of Chicago and State of Illinois.
Plaintiff argues that the City of Chicago should be liable in
damages for the alleged wrongdoing of its police officers because
the City of Chicago "employed the officers and vested them with
the powers and authority which enabled them to violate
plaintiff's rights." (Plaintiff's Memo in Opp. at page 1.) In
support of this argument plaintiff relies on the cases of Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and Kenosha
v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).
Plaintiff's reliance on these cases to support her claim against
the City under the circumstances of this case is misplaced.
In Bivens, supra, the alleged wrongdoers were certain federal
narcotics agents who were not within the purview of
42 U.S.C. § 1983. In order to fashion a remedy to redress the
wrongdoing of these agents, the Court held that plaintiff's claim
of a constitutional right to be free from unreasonable searches
and seizures by federal narcotics agents stated a cause of action
under the Fourth Amendment. 403 U.S. at 397, 91 S.Ct. at 2005, 29
L.Ed.2d at 627.
Under the facts of the instant case, however, plaintiff has a
remedy under 42 U.S.C. § 1983 against the alleged
wrongdoers. Yet, plaintiff also seeks to recover from the City of
Chicago, which is clearly outside the coverage of
42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961).
Plaintiff contends that she is entitled to sue the City
directly under the Fourteenth Amendment under the authority of
the decision of the Supreme Court in Kenosha v. Bruno,
412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).
Although some language in Kenosha v. Bruno does indicate that
a valid claim could exist under the Fourteenth Amendment against
a municipality under Bivens, supra, and Bell v. Hood,
327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court
did not reach the question of whether or not jurisdiction was
established since there was no determination made as to the
requisite jurisdictional amount. 412 U.S. at 514, 93 S.Ct. at
2227, 37 L.Ed.2d at 116-17. In addition, the case presented in
Kenosha v. Bruno is clearly distinguishable from the case at
In Kenosha v. Bruno the alleged deprivation of Fourteenth
Amendment due process rights related to the failure of the cities
of Kenosha and Racine to hold full adversary hearings before
renewal of one-year liquor licenses. The instant case is markedly
different. Here the alleged deprivation of Fourteenth Amendment
rights by the City related to the actions of the City when it
"employed the officers and vested them with the powers and
authority which enabled them to violate plaintiff's rights."
(Plaintiff's Memo in Opp. at page 1). The Court finds that
these allegations are insufficient to state a claim against the
City of Chicago.
In Kenosha v. Bruno and in other cases relied upon by the
plaintiff, the Courts were dealing with actions on the part of
the municipality: Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct.
2222, 37 L.Ed.2d 109 (1973) — City's failure to provide a hearing
for liquor license revocation; Maybanks v. Ingraham,
378 F. Supp. 913 (E.D.Pa. 1974) — City's racially discriminatory
discharge of an employee; Dahl v. City of Palo Alto,
372 F. Supp. 647 (N.D.Cal. 1974) — City's taking of property without
In the instant case the only action of the City alleged to
deprive plaintiff of her constitutional rights was the employment
by the City of these police officers. The Court finds that the
allegations of plaintiff's complaint are insufficient to state a
claim upon which relief can be granted under the Fourteenth
Amendment against the City of Chicago.
For the foregoing reasons, the motion of defendant, City of
Chicago, to dismiss for failure to state a claim upon which
relief can be granted is hereby granted.
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