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HAMRICK v. LEWIS

United States District Court, Northern District of Illinois, E.D


May 13, 1981

ROY GERALD HAMRICK, ADMINISTRATOR OF THE ESTATE OF STEVEN HAMRICK, DECEASED, PLAINTIFF,
v.
DENNIS LEWIS, INDIVIDUALLY AND AS SERGEANT OF THE VILLA PARK POLICE DEPARTMENT; RONALD OHLSON, INDIVIDUALLY AND AS PATROLMAN OF THE VILLA PARK POLICE DEPARTMENT; ROGER KNICELEY, INDIVIDUALLY AND AS PATROLMAN OF THE VILLA PARK POLICE DEPARTMENT; NORMAN HALL, INDIVIDUALLY AND AS DETECTIVE OF THE VILLA PARK POLICE DEPARTMENT; SCOTT SCHROEDER, INDIVIDUALLY AND AS PATROLMAN OF THE VILLA PARK POLICE DEPARTMENT; DONALD GROBL, INDIVIDUALLY AND AS PATROLMAN OF THE VILLA PARK POLICE DEPARTMENT; WILLIAM KOHNKE, AS CHIEF OF POLICE OF THE VILLA PARK POLICE DEPARTMENT; JAMES GLENNON, INDIVIDUALLY AND AS PATROLMAN OF THE LOMBARD POLICE DEPARTMENT; MR. LAITSCH (FIRST NAME UNKNOWN), INDIVIDUALLY AND AS PATROLMAN OF THE LOMBARD POLICE DEPARTMENT; THE VILLAGE OF VILLA PARK, A MUNICIPAL CORPORATION; THE VILLAGE OF LOMBARD, A MUNICIPAL CORPORATION; AND OTHER EMPLOYEES OF THE ABOVE-MENTIONED CORPORATIONS AS YET UNKNOWN TO PLAINTIFF AT THIS TIME; GREG SNYDER, INDIVIDUALLY AND AS AN EMPLOYEE OF THE VILLA PARK POLICE DEPARTMENT, DEFENDANTS.

The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Roy Gerald Hamrick ("Hamrick") filed this civil rights action in his capacity as administrator of his son Steven's estate against the Villages of Villa Park and Lombard, Chief William Kohnke of the Villa Park Police Department, eight individual police officers of the Villa Park and Lombard departments, and several named and unnamed village employees seeking $10,000,000 in compensatory and punitive damages for the defendants' alleged violation of Steven's fourth, fifth, sixth, eighth, and fourteenth amendment rights as well as 42 U.S.C. § 1983. Hamrick alleges that during the early morning hours of August 15, 1980, the police officers, acting pursuant to governmental policy or custom, forcibly entered Steven's home without a search or arrest warrant, chased him into the bathroom, smashed down the bathroom door, and shot Steven in the back of the head as he apparently tried to flush pills or other evidence down the toilet. Steven died of his wound approximately one hour later. Jurisdiction over the federal claims is asserted pursuant to 28 U.S.C. § 1343. Hamrick has also appended wrongful death and survival actions against the same defendants under Illinois law pursuant to this Court's pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

This matter is now before the Court on the motion of both villages and Chief Kohnke for dismissal of the amended complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6).*fn1 The guidelines to be used in considering a motion to dismiss are clear. 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 that would entitle him to the relief requested. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). As the Seventh Circuit has noted:

  Under the Federal Rules of Civil Procedure, it is
  well established that, on a motion to dismiss, a
  complaint must be construed in the light most
  favorable to the plaintiff, the allegations
  thereof being taken as true; and if it appears
  reasonably conceivable that at trial the
  plaintiff can establish a set of facts entitling
  him to some relief, the complaint should not be
  dismissed.

Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir. 1977).

MUNICIPAL LIABILITY UNDER MONELL

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), the Supreme Court held that municipalities and other local governmental entities are "persons" subject to liability under 42 U.S.C. § 1983 for constitutional deprivations occasioned by virtue of a governmental custom, policy, ordinance, regulation, or decision, whether or not such custom or policy has been formally adopted or approved through the governmental entity's official decision making channels.*fn2 Since Monell, the lower federal courts have struggled with the difficult task of determining just what is sufficient to state a claim for relief under the standard for municipal liability set forth in that case consistent with the liberal boundaries of federal notice pleading, Fed.R.Civ.P. 8(a), and the fairly low threshold of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), in the context of a motion to dismiss.

While it is unnecessary to show formal, documentary approval of a governmental custom or policy in order to state a claim under Monell, it is necessary to allege more than a single incident of illegality as evidence of a governmental policy, custom, or practice in order to state a claim for relief. Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970); Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980); Gomez v. City of West Chicago, 506 F. Supp. 1241, 1245 (N.D.Ill. 1981); Magayanes v. City of Chicago, 496 F. Supp. 812, 814 (N.D.Ill. 1980). In order to state a claim for relief against a municipality, a section 1983 plaintiff must do more than merely parrot the language of Monell or copy conclusory language from assorted decisions of other courts in which Monell-type claims have been upheld, at least at the pleading stage, as Hamrick has apparently done in the case at bar.*fn3 Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir. 1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979) ("a pleading is insufficient to state a claim under the Civil Rights Act if the allegations are mere conclusions."). Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976); Landesman v. City of New York, 501 F. Supp. 837, 839 (E.D.N.Y. 1980). There must be a factual basis asserted for the plaintiff's claim that he was a victim of acts undertaken pursuant to a pattern or practice equivalent to unofficial authorization.

Moreover, although the United States Court of Appeals for the Second Circuit has indicated in dicta on occasion that a Monell cause of action may be stated merely by pleading a particularly egregious act perpetrated by the police or other municipal employees, see Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980); Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979), neither the court of appeals for this circuit nor the district courts have recognized the sufficiency of such a complaint. A construction of Monell that would allow municipal liability to be predicated upon a single, isolated instance of illegality or misconduct, no matter how egregious the incident, would seem to broaden the impact of that decision in which the Court expressly stated that a governmental body could not be held liable under the theory of respondeat superior. Monell v. Department of Social Services, supra, 436 U.S. at 693-94, 98 S.Ct. 2037-38.

In the instant case, Hamrick has alleged a single, wrongful incident — the asserted unconstitutional search and arrest of Steven in his home that resulted in his death — allegedly perpetrated pursuant to an official policy, custom, or practice of the Villages of Villa Park and Lombard. Hamrick fails to allege the occurrence of similar incidents in these two municipalities so that, on the face of the amended complaint, it appears that Hamrick is attempting to state a claim against the villages solely on the basis of an isolated instance of police misconduct. As this Court and others have clearly stated, "a single instance of individual officers' misconduct . . . however reprehensible if true, does not indicate systematic, city-supported abuses of the nature to which Monell makes reference." Magayanes v. City of Chicago, supra, 496 F. Supp. at 814; Gomez v. City of West Chicago, supra, 506 F. Supp. at 1245.*fn4

Accordingly, the villages' motion to dismiss the amended complaint is granted. It is so ordered.

LIABILITY OF SUPERVISORY PERSONNEL

Chief Kohnke of the Villa Park Police Department moves to dismiss the amended complaint as to himself for failure to state a claim upon which relief can be granted. In order to establish liability against supervisory personnel under section 1983, there must be an affirmative link proven between their acts and omissions and the actions directly causing the alleged violation. See Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Jamison v. McCurrie, 565 F.2d 483 (7th Cir. 1977). Because the Seventh Circuit has held that a successful plaintiff under section 1983 must prove malicious or reckless misconduct, with negligence alone being insufficient, Jamison v. McCurrie, supra; Little v. Walker, 552 F.2d 193 (7th Cir. 1977), the affirmative link required for supervisory liability requires more than mere negligent supervision of those over whom the supervisor has authority and control. McDonald v. State of Illinois, 557 F.2d 596, 601-602 (7th Cir. 1977); Bonner v. Coughlin, 545 F.2d 565, 569 (7th Cir. 1976).

In the case at bar, Hamrick alleges that:

  Defendant Police Chief WILLIAM KOHNKE
  participated in, had knowledge of, directed,
  approved, was personally responsible for,
  personally cooperated in or was reckless with
  regard to formulating, organizing and planning
  official policy which led to and which was the
  moving force behind the actions which are the
  subject of this Complaint.

Amended Complaint at ¶ 41. Hamrick further alleges that Chief Kohnke "was personally involved in some way in the wrongdoing complained of in this Complaint," Amended Complaint at ¶ 38, and that he failed "to institute a policy to control the behavior of subordinate employees" in a situation such as the one involving the raid on Steven Hamrick's home which "amounts to deliberate indifference or tacit, if not explicit, authorization of the offensive acts." Amended Complaint at ¶ 42.

Hamrick has alleged a link between Kohnke's alleged acts or omissions and the events surrounding the search, arrest, and ultimate death of Steven Hamrick.*fn5 If the allegations in the amended complaint are true, more than mere negligence is involved. Thus, these allegations adequately state a claim against Chief Kohnke at this stage of the proceedings. Accordingly, Chief Kohnke's motion to dismiss is denied. It is so ordered.

PUNITIVE DAMAGES

The Villages of Villa Park and Lombard also move to strike Hamrick's prayer for punitive damages since the villages are local public entities under the Illinois Tort Immunity Act, Ill.Rev.Stat. ch. 85, §§ 1-101 et seq., which provides that "notwithstanding any other provision of law, a local public entity is not liable to pay punitive or exemplary damages in any action brought directly against it by the injured party." Ill.Rev.Stat. ch. 85, § 2-102 (1979). The Seventh Circuit has held that the Illinois Tort Immunity Act "cannot protect defendants against a cause of action grounded, as here, on a federal statute." McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). In Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974), the Seventh Circuit held that, provided certain aggravating circumstances are shown, punitive damages are recoverable under federal law in a section 1983 action, even in the absence of actual loss to the plaintiff. See also Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1067 (1st Cir. 1980), cert. granted sub nom., Newport v. Fact Concerts, Inc., ___ U.S. ___, 101 S.Ct. 782, 66 L.Ed.2d 603 (1980), argued March 13, 1981, 29 Crim.L.Rptr. 4013 (upholding an award of punitive damages against a municipality in a section 1983 suit).*fn6

Accordingly, the villages' motion to strike the request for punitive damages is denied. It is so ordered.

The villages and Chief Kohnke also move to strike the prayer for punitive damages under the state law wrongful death and survival claims. Illinois law is clear that punitive damages may not be recovered under either the Survival Act, Ill.Rev.Stat., ch. 110 1/2, § 27-6 (1979), or the Wrongful Death Act, Ill.Rev.Stat., ch. 70, §§ 1, 2 (1979). See Mattyasovszky v. West Towns Bus Company, 61 Ill.2d 31, 330 N.E.2d 509, 512 (1975); Rusher v. Smith, 70 Ill. App.3d 889, 26 Ill.Dec. 905, 910-911, 388 N.E.2d 906, 911-12 (5th Dist. 1979). See also In re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979, 644 F.2d 594, at 605-606 (7th Cir., 1981).

Hamrick contends, however, that to deny punitive damages in wrongful death and survival actions while permitting them in personal injury cases violates principles of equal protection, citing In re Paris Air Crash of March 3, 1974, 427 F. Supp. 701 (C.D.Cal. 1977). Other courts have reached a contrary result. See Johnson v. International Harvester Co., 487 F. Supp. 1176, 1178-82 (D.N.D. 1980). Accordingly, the motion to strike the prayer for punitive damages under the state law counts is allowed. It is so ordered.


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