The opinion of the court was delivered by: Shadur, District Judge.
Defendants City of Chicago (the "City"), Richard Brzeczek
("Brzeczek"), M. Michel-borough ("Michelborough") and J.
Baldridge ("Baldridge") have moved to dismiss the Second
Amended Complaint (the "Complaint") of plaintiff Ramon
Magayanes ("Magayanes"). For the reasons stated in this
opinion and order, the motions of the City and Brzeczek are
granted and the motion of defendants Michelborough and
Baldridge is denied.
Magayanes alleges that on November 13, 1979 he was arrested
and beaten by Terrance and Sullivan, both Chicago police
officers, solely because of their belief that he was Iranian.
Michelborough and Baldridge, also Chicago police officers,
drove the squadrol in which Magayanes was transported to jail
following his arrest. Their alleged liability is predicated on
Magayanes' assertion that he was injured during the drive to
jail. Magayanes claims that injury was due to all four
officers' "failure to prevent plaintiff from being injured"
because of their belief he was Iranian (Complaint ¶ 32-33).
Brzeczek and the City are alleged to have "knowingly,
intentionally, maliciously with deliberate indifference and
gross negligence" (Complaint ¶ 24, 40, 52) "failed in their
duty to control, supervise, and in any way train their agents
in dealing with anti-Iranian sentiments by their agents or the
public" (Complaint ¶ 10, 27, 46), thereby directly and
proximately causing Magayanes' injuries.
Magayanes claims various constitutional violations, and
entitlement to relief against all defendants under the Civil
Rights Act of 1871, 42 U.S.C. § 1983 and 1985.
In its motion to dismiss, the City relies chiefly on
Magayanes' alleged failure to plead actions by the City
sufficient to meet the standard established in Monell v.
Department of Social Services of the City of New York,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell a class of
female employees sued under Section 1983, alleging that New
York's Board of Education and Department of Social Services
had, as a matter of official policy, compelled pregnant
employees to take unpaid leaves of absence before such leaves
were medically necessary. Overruling Monroe v. Pape,
365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court held that a
municipality was a "person" subject to liability under Section
1983 for unconstitutional action that (436 U.S. at 690-91, 98
S.Ct. at 2035-36):
It is difficult to perceive how the actions allegedly giving
rise to the City's liability in this instance (failure to
control, supervise or train the City's agents to deal with
anti-Iranian sentiment) could be construed to constitute an
"officially adopted policy" or "governmental custom" thereby
satisfying the Monell requirement. Magayanes alleges a single
instance of individual officers' misconduct that, however
reprehensible if true, does not indicate systematic,
city-supported abuses of the nature to which Monell makes
Magayanes' principal arguments in opposition to the City's
motion are two-fold:
First, Magayanes contends that some language in Owen v. City
of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673
(1980), dictates that municipal liability is proper here
(Plaintiff's Brief at 2-3). However, Owen, which involved
direct actions by a City Council and a City Manager pursuant to
the Council's orders, did not suggest a modification of the
Monell standard. In fact, Owen expressly recognized the
respondeat superior limitation suggested by Monell; 100 S.Ct.
at 1418 n. 39.
Second, Magayanes claims that the Complaint's allegations
against the City reflect sufficient specificity and
probability of success that, under the general principles
governing the disposition of motions to dismiss, Magayanes is
entitled to "his day in court" (Plaintiff's Brief 3-4). This
Court concurs in the views expressed by Judge Grady in
Thedford v. Joyce, supra, dealing with circumstances quite
similar to those in this case. Judge Grady recognized that the
principle "that an action should not be dismissed on the
pleadings unless it appears that plaintiffs can `prove no set
of facts in support of their claim'" applies in the Section
1983 context. Nonetheless he held that allegations against a
municipality will not suffice if they are so conclusory as not
to support "any possible Monell-type claim against the City or
the head of the Police Department." Specifically, he noted that
plaintiffs must "explain the overt acts relied upon as a basis
for the claim that a pattern of unconstitutional action
exists. . . ." (emphasis added). In this case, the entire
action is predicated on a single incident with no intimation of
the requisite "pattern."
Dismissal of Brzeczek
For the most part, both parties' briefs treat defendants
Brzeczek and the City as governed by the same principles.
Accordingly, the foregoing discussion is equally applicable in
evaluating Brzeczek's liability or lack of it. In addition,
Brzeczek notes two other factors.
First, in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1976), the Supreme Court held that injunctions
against Philadelphia's Mayor, City Manager and supervisory
policy officials under Section 1983 were improper unless the
complainants demonstrated an "affirmative link between the
various incidents of police misconduct and the adoption of any
plan or policy by defendants showing their authorization or
approval of the misconduct." Magayanes responds that Brzeczek's
"failure to do a job properly" constitutes such an affirmative
link. In light of the analogous "failures" in Rizzo, more
severe and systematic than those alleged here, this Court finds
that argument unpersuasive.
Second, Brzeczek points out Magayanes' failure to allege
facts showing Brzeczek's personal (as opposed to official)
culpability. Magayanes' brief made no response to this point,
which provides an added justification for dismissing the
Complaint as to Brzeczek.
Non-Dismissal of Michelborough and Baldridge
Magayanes argues that defendants Michelborough and Baldridge
are liable under two theories. First, they allegedly
"knowingly, intentionally, maliciously with deliberate
indifference and with gross negligence" failed in their "duty"
to Magayanes after his arrest, causing him injury and
violating his civil rights. Second, they allegedly
conspired with other defendants "to deny and deprive plaintiff
of rights guaranteed to him under the Constitution and laws of
the United States" (Complaint ¶¶ 38, 50). At this stage of the
proceedings, the only issue before this Court is whether
Magayanes' allegations satisfy the liberal pleading
requirements of Fed.R.Civ.P. 8(a).*fn2
As to the first theory of liability, Magayanes has alleged
that Michelborough and Baldridge transported Magayanes to the
police station in a police squadrol, that he was injured while
in their custody and that such injury was a result of their
intentional breach of duty owed to Magayanes (Complaint ¶¶ 30,
31, 40). This Court holds that those allegations (1) are
sufficiently specific for purposes of Fed.R.Civ.P. 8(c)*fn3
and (2) satisfy the requirement that intentional or reckless
misconduct must be alleged to maintain a civil rights action.
See Beard v. Mitchell, 604 F.2d 485 (7th Cir. 1979).*fn4
As to Magayanes' conspiracy theory,*fn5 defendants argue
dismissal is proper because the allegations are "devoid of
facts," vague and conclusory. Conspiracy is alleged in each of
the three Counts of the Complaint, by the same language:
In doing the acts and things above complained
of . . . [defendants] were conspirators engaged
in a scheme and conspiracy designed to deny and
deprive plaintiff of rights guaranteed to
him. . . .
Defendants cite three decisions in support of the
proposition that the factual specificity required for a
conspiracy charge is lacking. First is Everett v. City of
Chester, 391 F. Supp. 26 (E.D.Pa. 1975), involving allegations
quite similar to those in this case. That Court dismissed the
complaint, holding (391 F. Supp. at 29, emphasis added):
Conclusory claims of conspiracy unsupported by
factual allegations regarding an agreement are
insufficient to establish a 1985(3) claim.
Coggins v. McQueen, 447 F. Supp. 960 (E.D. Pa. 1978), merely
recites the Everett rationale. Finally, Simms v. Reiner,
419 F. Supp. 468 (N.D.Ill. 1976), granted a motion for summary
judgment, holding that on the basis of the record (affidavits,
depositions, answers to interrogatories and a police report) a
charge of conspiracy had not been made out.
Cases in this Circuit do suggest that specific allegation of
an overt act committed in furtherance of a conspiracy is
required to resist dismissal of a conspiracy charge. See French
v. Corrigan, 432 F.2d 1211, 1213 (7th Cir. 1970); Simms v.
Reiner, supra, 419 F. Supp. at 474. Such allegations are present
here.*fn8 Each of the three conspiracy allegations is
predicated on "the acts and things above complained of." Those
acts are within (1) Paragraphs 11 and 12 of the Complaint,
alleging a physical beating of Magayanes by Terrance and
Sullivan (preceding the conspiracy allegation of Count I); (2)
Paragraph 32, alleging that while under the control of
Terrance, Sullivan, Michelborough and Baldridge, Magayanes was
injured as a result of their breaching a duty owed to him
(preceding the Count II conspiracy allegation); and (3)
Paragraph 45, containing the same allegation (preceding the
final conspiracy charge in Count III). Each of the allegations
of defendants' acts, at this stage of the proceedings, is a
sufficient description of an overt act in furtherance of the
alleged conspiracy to satisfy the pleading requirements set
Defendants' motion to dismiss is accordingly granted solely
as to the City and Brzeczek. All remaining defendants are
ordered to answer the Complaint on or before September 26,