United States District Court, Northern District of Illinois, E.D
February 27, 1981
DONALD J. VILLA, PLAINTIFF,
GAYLE M. FRANZEN ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
On September 18, 1979 Donald J. Villa ("Villa") filed this
action under 42 U.S.C. § 1983 ("Section 1983") against Director
of the Illinois Department of Corrections Gayle M. Franzen
("Franzen"), Warden of the Stateville Correctional Center Marvin
Reed ("Reed"), Comprehensive County Hospitals, Health and Allied
Medical Programs Governing Commission of Cook County
("Commission"), the Village of Tinley Park ("Tinley Park") and
other defendants,*fn1 alleging that the various defendants have
engaged in numerous violations of Villa's Eighth and Fourteenth
Amendment rights. Three fully-briefed motions are pending:
Franzen's and Reed's motion to dismiss, Commission's motion to
dismiss and Tinley Park's motion for summary judgment.*fn2
For the reasons stated in this memorandum opinion and order:
1. Franzen's and Reed's motion to dismiss is denied.
2. Commission's motion to dismiss is denied.
3. Tinley Park's motion for summary judgment is
Villa, an inmate at Stateville Correctional Center
("Stateville"), is now serving concurrent sentences of 30 to 90
years for attempted murder, armed robbery and aggravated
kidnapping. Villa's convictions stem from an attempted robbery
on July 12, 1977 during which he was shot and seriously wounded
by a policeman just before his arrest.
As a result of that shooting Villa is a quadriplegic, having
lost partial use of his arms and total use of his legs. For the
period between the shooting and his June 4, 1979 sentencing Villa
was placed in Cook County and Cermak Memorial Hospitals (the
"hospitals"), both of which were operated by the Commission. Upon
sentencing he was transferred to Stateville, where he is confined
in that institution's medical facility.
Villa claims that the medical treatment he received at the
hospitals and at Stateville has been so inadequate as to
constitute cruel and unusual punishment in violation of the
Eighth Amendment. Additionally he alleges that agents of Tinley
Park beat him viciously on July 12, 1977 (apparently following
Franzen's and Reed's Motion To Dismiss
In Complaint Count I Villa details the alleged inadequacies of
his medical treatment at Stateville: the medical facility is
unclean, Villa's diet is deficient and the particular needs
caused by his physical condition are largely ignored. Villa seeks
monetary relief and an injunction directing Franzen and Reed to
transfer him to an adequate medical facility.
Franzen and Reed move to dismiss on three grounds:
1. Villa has failed to demonstrate that their conduct as prison
supervisors amounts to "deliberate indifference to his serious
medical needs," essential to obtain monetary relief against
prison officials under Section 1983. Estelle v. Gamble,
429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
2. Franzen and Reed are entitled to a qualified immunity
shielding them from damage liability under Section 1983,
because Villa has failed to demonstrate that their allegedly
injurious actions were "intentional." Procunier v. Navarette,
434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978).
3. Section 1983 action is inappropriate because Villa seeks
release from the custody of the Department of Corrections,
relief obtainable only by federal habeas corpus. Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
As for the first two grounds, Complaint Paragraphs 14 and 15
state (emphasis added):
14. Plaintiff, his family, and his attorneys have
all requested and demanded that Plaintiff be
transferred from the Stateville Correctional Center
to a medical facility which is able to provide the
specialized medical care, treatment, and therapy that
15. Defendants, Gayle M. Franzen, Director of
Illinois Department of Corrections, and Marvin Reed,
Warden of Stateville Correctional Center, have
deliberately and intentionally refused to transfer
Plaintiff, DONALD J. VILLA, to a medical facility
where he will receive the proper specialized medical
care and treatment necessary to his life, health and
Those allegations plainly satisfy the requirements of Estelle
and Procunier. Villa charges that because of his physical
condition the conditions at Stateville were unconstitutionally
cruel, that Franzen and Reed were apprised of that situation and
that they "deliberately and intentionally" refused to rectify the
unconstitutional treatment. If proved, those allegations could
entitle Villa to relief from Franzen and Reed. That possibility
is enough to defeat a motion to dismiss. Conley v. Gibson,
355 U.S. 41
, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).
Franzen's and Reed's third argument rests on a
mischaracterization of Villa's prayer for injunctive relief.*fn4
They state that Villa seeks a transfer to "Silver Cross Hospital,
a private institution in Joliet, or some other medical facility
other than those operated by the Illinois Department of
Corrections." In fact Villa asks for transfer to Silver Cross
Hospital "or some other facility that this Court determines to be
a proper one." That request does not necessarily involve release
from the state's custody, but rather placement in any
constitutionally sufficient facility. In short Villa's Complaint
addresses the conditions rather than the propriety of his
Accordingly Preiser actually undermines the Franzen-Reed
contention. In distinguishing prior cases holding prisoner
actions properly brought under Section 1983, the Court said (411
U.S. at 498-99, 93 S.Ct. at 1841):
[I]n all those cases, the prisoners' claims related
solely to the States' alleged unconstitutional
treatment of them while in confinement. None sought,
as did the respondents here, to challenge the very
fact or duration of the confinement itself. Those
cases, therefore, merely establish that a § 1983
action is a proper remedy for a state prisoner who is
making a constitutional challenge to the conditions
of his prison life, but not to the fact or length of
Villa's Complaint may be fairly read in those terms and is
thereby properly maintainable as a Section 1983 action.
Commission's Motion To Dismiss*fn6
Complaint Count II alleges that while in the hospitals' custody
Villa was mistreated in a manner constituting cruel and unusual
punishment under the Eighth Amendment. Villa seeks monetary
relief under Section 1983. Commission challenges the legal
sufficiency of that claim under Monell v. Department of Social
Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct.
2018, 2037, 56 L.Ed.2d 611 (1978):
[A] local government may not be sued for an injury
inflicted solely by its employees or agents. Instead,
it is when the execution of a government's policy or
whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent
official policy, inflicts the injury that the
government as an entity is responsible under § 1983.
This Court has recently discussed the ease with which
complaints may be drafted to withstand dismissal on Monell
grounds. Its opinion in Thompson v. Village of Evergreen Park,
Illinois, 503 F. Supp. 251
(D.C.Ill. 1980) concluded that in
light of the mandate of Fed.R.Civ.P. ("Rule") 8(a), a plaintiff
need only "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."*fn7
Shortly before that our Court of
Appeals also held that at the pleading stage of litigation the
Monell requirement is met as long as the complaint indicates
that "it is possible that existence of a policy, custom or
practice might be established." Murray v. City of Chicago,
634 F.2d 365
(7 Cir. 1980).
Here Complaint Paragraph 25 alleges that the "acts of
[Commission's agents in the hospitals] . . . alleged herein were
done by [them] . . . under the color and pretense of the
statutes, regulations, customs, and usages of the State of
Illinois and its municipal subdivisions . . ." (emphasis added).
Though cursory indeed, the allegation of custom is sufficient to
support the requisite "possibility" that such custom will be
proved. And such proof would satisfy Monell.*fn8
Finally, this Court does not accept Commission's contention
that a "passive" custom*fn9 — mere acquiescence in illegal
actions on the part of its employees — cannot serve to
establish municipal liability under Monell. Villa alleges that
Commission was fully aware of the illegal mistreatment
administered by its employees. Such knowledge of, and continued
acquiescence in, illegal actions by a municipality's employees
("deliberate indifference") may be sufficient policy or custom
to give rise to the municipality's liability under Section 1983.
See, e.g., Owens v. Haas, 601 F.2d 1242, 1246-47 (2d Cir.
Tinley Park's Motion for Summary Judgment
Tinley Park's motion for summary judgment raises Monell
issues similar to those just discussed. Villa claims that he
was illegally beaten by Tinley Park police officers on July 12,
1977 and that those actions were taken "in accordance with the
policy, procedure, and customs . . . of Tinley Park." Tinley
Park argues that those allegations fail to satisfy the Monell
requirement for municipal liability under Section 1983.
Had Tinley Park filed a motion to dismiss, it would have had
to be denied because the Complaint's bare allegations satisfy
the Monell standard. But Tinley Park instead moved for summary
judgment, submitting the affidavits of its six Board of
Trustees members specifically negating any policy or custom of
police brutality in Tinley Park. Villa has submitted nothing in
Fed.R.Civ.P. 56(e) provides:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of
his pleading, but his response . . . must set
forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against
Accordingly Villa's mere allegations of policy or custom must
give way to Tinley Park's uncontroverted affidavits. Tinley
Park's motion for summary judgment is granted.
1. Franzen's and Reed's motion to dismiss is denied. Franzen
and Reed are ordered to answer the Amended Complaint on or
before March 16, 1981.
2. Commission's motion to dismiss is denied. Under Villa's
December 17, 1980 motion, Commission is dismissed without
3. Tinley Park's motion for summary judgment is granted.
Villa's motion for voluntary dismissal of Tinley Park without
prejudice is therefore denied.