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August 31, 1981


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


Plaintiff Ebb Spriggs seeks damages for injuries allegedly caused by police misconduct. Named as defendants are both the allegedly culpable individual officers and their employer, the City of Chicago. Pursuant to Fed.R.Civ.P. 12(b)(6), the City has moved to dismiss all claims against it. For the following reasons, this motion is denied.

I. Facts

According to plaintiff's allegations which are taken as true for the purposes of this motion, plaintiff, a black individual, was a victim of gross police brutality. Plaintiff alleges that around 11:30 p. m. on November 30, 1979, numerous armed plain-clothes officers demanded entry to his home on Chicago's west side. The officers, at least some of whom were white, did not identify themselves as policemen. In fear for his life, plaintiff attempted to flee through his rear door. However, he was quickly apprehended and thereupon subjected to a severe beating. Following the attack, the police officers searched plaintiff's home, finding and removing several guns. Plaintiff was then arrested and taken to the police station where he was held for four hours and charged with violating several Chicago ordinances. The States Attorney of Cook County subsequently dismissed all charges.

According to plaintiff, at no time during these events were any arrest or search warrants outstanding and the individual defendants did not have probable cause to believe that he had committed a crime or that his home contained any articles subject to seizure. Plaintiff claims that the acts of the individual defendants deprived him of rights secured by the Fourth, Fifth, Eighth and Fourteenth Amendments and proximately caused him great injury.

In Count I plaintiff seeks compensatory and punitive damages of $50,000 against the individual officers under both 42 U.S.C. § 1981 and 42 U.S.C. § 1983. In Count II plaintiff alleges that the above-described acts resulted from a conspiracy between the individual defendants and "other persons whose names are presently unknown." Complaint, ¶ 30. The goal of this conspiracy, plaintiff alleges, was the denial to plaintiff of his right to equal protection under the law. An additional $50,000 of compensable relief is accordingly sought from the individual defendants under 42 U.S.C. § 1985.

In Count III plaintiff alleges that "it is the practice and custom of the City of Chicago via its police officers to treat black individuals in the manner and fashion described in this Complaint." Complaint, ¶ 33. Plaintiff's claim of custom is premised on the following theory. Instances of police brutality against black individuals, he argues, occur often and repeatedly. Further, the City of Chicago is aware of all or most of these events. Yet in the face of this awareness, the City has failed to curb its employees' behavior. More specifically, the City has failed to discharge its "duty" to prevent or discourage said instances from occurring by means of investigation, punishment of the involved officer or other means . . ." Complaint, ¶ 37. Plaintiff demands $50,000 from the City under 42 U.S.C. § 1981 and 42 U.S.C. § 1983.

The present motion concerns only Count III. It is thus necessary to discuss only the contours of municipal liability under Sections 1981 and 1983.*fn1

II. Section 1983*fn2

A. Basic Requisites of Municipal Liability.

It is by now hornbook law that cities are "persons" within the meaning of Section 1983 and can thus be liable for the constitutional torts of their agents. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruling on this point, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). But it is equally clear that the mere fact of agency is an insufficient basis upon which to premise municipal liability; "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Rather, municipal liability attaches only when

  "the action that is alleged to be
  unconstitutional implements or executes a
  policy statement, ordinance, regulation, or
  decision officially adopted and promulgated by
  that body's officers. Moreover, although the
  touchstone of the § 1983 action against a
  government body is an

  allegation that official policy is responsible
  for a deprivation of rights protected by the
  Constitution, local governments, like every
  other § 1983 `person,' by the very terms of the
  statute, may be sued for constitutional deprivation
  visited pursuant to governmental `custom' even
  though such a custom has not received formal
  approval through the body's official
  decision-making channels."

Id., 436 U.S. at 690-1, 98 S.Ct. at 2035-36 (footnote and citation omitted). Only when a municipal "policy" is the motivating force behind a constitutional deprivation can it be said that a city has, in the words of the statute, "cause[d plaintiff] to be subjected" to the wrong. Id. 436 U.S. at 692, 98 S.Ct. at 2036. Thus, municipal liability under Section 1983 requires proof of two elements. First, it must be shown that the acts of the city's agents were wrongful, i. e., there must be plead a constitutional or statutory (Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980)) violation. Second, plaintiff must establish the existence of a ...

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