The opinion of the court was delivered by: Moran, District Judge.
This is an action under 42 U.S.C. § 1983 and 1985(3) to
redress an alleged deprivation of the plaintiff's civil rights as
guaranteed by the Fourth, Fifth, Seventh and Fourteenth
Amendments to the United States Constitution. The defendant City
of Chicago has filed a motion to dismiss the complaint.
The plaintiff alleges that on January 9, 1979, security
officers at the Jewel Grand Bazaar, located at 5320 South Pulaski
in Chicago, suspected her of theft of store merchandise. The
officers proceeded to strip-search her on store premises. She was
subsequently taken to a City of Chicago police station where she
was arrested and again strip-searched.
Plaintiff Jordan was charged with theft and appeared in court
on February 5, 1979. When the City of Chicago and Jewel
Companies, Inc., defendants herein, failed to appear to
prosecute, the case was continued to March 6, 1979. Defendants
again failed to appear and the proceedings were terminated in
favor of Jordan.
On September 14, 1979, Jordan filed a complaint in this court.
Counts I and II of plaintiff's complaint seek to hold the City of
Chicago liable under §§ 1983*fn1 and 1985(3) for depriving her of
her constitutional rights. The law on the subject of municipal
liability for police action has gone through several changes in
recent years, and remains somewhat unsettled.
The first question this court must resolve is whether
plaintiff's complaint under § 1983 can only be read to assert a
claim against the City of Chicago under a theory of respondeat
superior. The parties are in agreement that the defendant cannot
be held liable solely under this theory. The Supreme Court in
Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978), recently held that "a municipality
cannot be held liable solely because it employs a tortfeasor —
or, in other words, a municipality cannot be held liable under §
1983 on a respondeat superior theory." Id. at 691, 98 S.Ct. at
2036. Therefore municipalities are liable only for action
"pursuant to official municipal policy of some nature (that)
caused a constitutional tort." Id.
Thus, the question becomes whether the plaintiff has alleged an
"act pursuant to some official municipal policy," and further,
whether the municipality, under the color of law, has in some way
"caused" its employees to violate plaintiff's constitutional
rights. The plaintiff contends that Paragraph 4 of Count I of the
complaint fulfills these requirements. That paragraph alleges:
That at all times mentioned and material to this
complaint, the defendant, CITY OF CHICAGO, DEPARTMENT
OF POLICE, through certain of its police officers,
women attendants, or other employees and agents, and
at all times hereinafter mentioned, were acting under
the color of the statutes and ordinances of the City
of Chicago and State of Illinois.
These allegations are not sufficient under Monell.
In Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979), the Second
Circuit Court of Appeals considered whether the lower court
properly dismissed an action based on facts and pleadings similar
to those involved in this case. Owens was a federal prisoner who
alleged that he was severely beaten by prison officials and as a
result of such beatings was badly injured. He filed a damage suit
in district court, alleging violations of his civil rights under
§§ 1983 and 1985. The district judge rejected Owens' § 1983 claim
against Nassau County because no official policy or pattern of
constitutional violations had been pleaded so as to hold the
county liable under Monell.
The Court of Appeals, citing Leite v. City of Providence,
463 F. Supp. 585 (D.R.I. 1978), noted that the county could be held
liable if the failure to supervise or lack of a proper training
program was so severe as to constitute "gross negligence" or
"deliberate indifference" to the deprivation of plaintiff's
constitutional rights. By alleging "deliberate indifference," the
plaintiff would be seeking to hold a municipal body liable for
its own actions, rather than for the actions of its employees on
a respondeat superior theory. The court of appeals ruled that
plaintiff Owens should be permitted to amend his complaint and
conduct limited discovery to determine whether a case could be
made for deliberate indifference by the county.
Furthermore, the element of causation is absent from
plaintiff's complaint. The Supreme Court in Rizzo v. Goode,
423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), held that
municipalities and supervisory personnel are not liable for civil
rights violations perpetrated by individual police officers
absent an "affirmative link between the occurrence of the various
incidents of police misconduct and the adoption of any plan or
policy by (the defendants) — express or otherwise — showing their
authorization or approval of such misconduct." Id. at 371, 96
S.Ct. at 604. Plaintiff's complaint fails to describe any link
between alleged police misconduct and an official policy of the
City of Chicago, nor does it allege the city's acquiescence in or
condonation of such misconduct.
The second issue with which this court is presented is whether
the plaintiff has stated a cause of action under § 1985(3).*fn2
In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29
L.Ed.2d 338 (1971), the Supreme Court held that "(t)he language
[of 1985(3)] requiring intent to deprive of equal protection, or
equal privileges and immunities, means that there must be some
racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators' action." Id. at
102, 91 S.Ct. at 1798. See also Murphy v. Mount Carmel High
School, 543 F.2d 1189, 1192 n. 1 (7th Cir. 1976); Potenza v.
Schoessling, 541 F.2d 670, 672 (7th Cir. 1976); Lesser v. Braniff
Airways, Inc., 518 F.2d 538, 541 (7th Cir. 1975). Clearly, all
racially based discrimination is within the ambit of § 1985(3).
See Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979); The
Supreme Court, 1970 Term, 85 ...