The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant Village of Evergreen Park (the "Village") has moved to
dismiss the first Amended Complaint filed by plaintiff Naomi D. Thompson
charging an unconstitutional "strip search" by officers and agents of the
Village and its Police Department. For the reasons stated in this
memorandum opinion and order the Village's motion is denied.
This action exemplifies the growing tension between the notice pleading
concepts of Fed.R.Civ.P. ("Rule") 8(a) and the courts' desire to shield
municipalities from what may be groundless claims in light of Monell v.
Department of Social Services of City of New York, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under the familiar teaching of Conley
v. Gibson, 355 U.S. 41, 45-46, 47, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80
[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. The
respondents also argue that the complaint failed to
set forth specific facts to support its general
allegations of discrimination and that its dismissal
is therefore proper. The decisive answer to this is
that the Federal Rules of Civil Procedure do not
require a claimant to set out in detail the facts upon
which he bases his claim. To the contrary, all the
Rules require is "a short and plain statement of the
claim" that will give the defendant fair notice of
what the plaintiff's claim is and the grounds upon
which it rests.
It is of course easy to prepare allegations that track the Monell
requirement of a governmental "policy" or "custom" (436 U.S. at 691, 98
S.Ct. at 2036) and thus step over the very low threshold of Conley. For
that reason some courts have imposed a requirement of pleading specific
acts by senior governmental officials establishing such policy or
custom. See for example Smith v. Ambrogio, 456 F. Supp. 1130 (D.Conn.
1978); Schramm v. Krischell, 84 F.R.D. 294 (D.Conn. 1979).
Although it is strongly sympathetic to the problems of the governmental
body confronted with claims predicated on nothing more than supposition,
the Court finds it difficult to reconcile such judicial legislation with
the mandates of Rule 8(a) and such cases as Conley. When a requirement
of specific allegations is needed, the Rules know how to impose it
— see Rule 9(b), requiring particularity as to circumstances
constituting fraud or mistake, and Rule 9(g), requiring specific
statement of items of special damages. There is a necessary negative
implication from a failure to specify a comparable requirement for
Section 1983 cases (42 U.S.C. § 1983) — and certainly the
Rules do not so specify.
This Court has itself responded to the problem by requiring a somewhat
elevated level of pleading in Magayanes v. City of Chicago,
496 F. Supp. 812, 813-14 (N.D.Ill. 1980). But the Court finds that
standard satisfied by the allegations of Paragraph 5 of the First Amended
The Village of Evergreen Park, an Illinois municipal
corporation, in its capacity as a governing, and
rule-making body, implemented the policy of routine
strip searches through the adoption of a formal policy
or pursuant to governmental custom, which policy or
custom was acted upon, executed and enforced by its
various agencies and agents.
Defendants confronted with groundless suits by plaintiffs whose counsel
simply read and parrot Monell are not without remedy. In appropriate
cases 42 U.S.C. § 1988 provides for attorney's fees for prevailing
defendants (though the test is a stringent one, Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648
(1978)), and the Court also has the inherent power under Roadway
Express, Inc. v. Piper, ___ U.S. ___, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d
488 (1980), and the cases it cites to deal with abuses if truly frivolous
claims are presented.
There is one other issue that merits brief discussion: plaintiff's
claim for punitive damages. As to Count I, controlled by Illinois law, it
is clear that such damages are not recoverable. Ill.Rev.Stat. ch. 85,
§ 2-102; Newell v, City of Elgin, 34 Ill. App.3d 719, 340 N.E.2d 844
(2d Dist. 1976). Count II poses a mqre difficult problem, as to which
neither party cites any appreciable authority. Carey v Piphus,
435 U.S. 247, 257 n. 11, 98 S.Ct. 1042, 1049 n. 11, 55 L.Ed.2d 252
(1978), specifically reserved decision of that question in Section 1983
cases, and our Court of Appeals' decisions in Spence v. Staras,
507 F.2d 554, 558 (7th Cir. 1974) and Morales v. Haines, 486 F.2d 880,
882 (7th Cir. 1978) upholding punitive damages antedated Monell (as did
Carey). It is therefore not at all certain whether punitive damages would
lie against a municipal defendant, and the Court will reserve judgment on
that issue until the trial date approaches, by which time legal doctrine
on the subject should have begun to take shape.
Defendant Village is ordered to answer the First Amended Complaint on
or before January 9, 1981.
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