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MEANS v. CITY OF CHICAGO

March 1, 1982

CHERYL MEANS, ADMINISTRATRIX OF THE ESTATE OF GARY LEE, DECEASED, PLAINTIFF,
v.
THE CITY OF CHICAGO, ET AL., DEFENDANTS.



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

  MEMORANDUM OPINION

Plaintiff Cheryl Means, as administratrix of the estate of Gary Lee, has brought this civil rights action pursuant to 42 U.S.C. § 1983, 1985, 1986, 1988 (1976) alleging that defendants City of Chicago, Richard Brzeczek, Superintendent of Police, Frank Nolan, Director of the Office of Professional Standards, and six individual police officers,*fn1 deprived Gary Lee of his life without due process of law in violation of the fifth, eighth, thirteenth and fourteenth amendments to the United States Constitution. Defendant City of Chicago and the individual defendants have presented separate motions to dismiss all or various counts of the complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6).

Facts

The complaint alleges that on January 14, 1981, defendant police officers Morgan and Healy stopped and arrested Gary Lee without probable cause or other justification and subsequently, without provocation, shot him in the head and killed him. Complaint ¶¶ 14, 15. Further, it alleges that Morgan and Healy and four other named police officers "improperly" delayed Lee's transportation for receipt of medical attention, proximately causing his death, Complaint ¶¶ 16, 19, and engaged in a conspiracy consisting of the false arrest, unjustified shooting, failure to provide medical attention and attempting to cover up the alleged events after the fact. Complaint ¶¶ 21-24.

Plaintiff additionally alleges that the City of Chicago, its police superintendent and director of professional standards, by their written and de facto policies, regulations, practices and customs of improperly hiring, screening and training officers, by failing to discipline these officers for past misconduct, and by encouraging officers to use deadly or excessive force, proximately caused the death of Gary Lee. Complaint ¶¶ 27, 29-31. Finally, plaintiff states three pendant state claims for wrongful death against the individual police officers, for respondeat superior liability against the City and the supervisory defendants for that wrongful death, and against the City directly for negligently entrusting and retaining the individual officers. For each of these acts the plaintiff seeks compensatory and punitive damages.

§ 1983 Claims

The City of Chicago moves to dismiss the § 1983 claims against it on the grounds that the claims lack specificity and fail to state a causal link between the alleged conduct of the City and the decedent's death. It is well settled that 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 [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

The starting point for judging potential liability of a municipality under § 1983 is Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), where the Supreme Court held that a city was a "person" for the purpose of the statute but rejected traditional concepts of vicarious liability based upon the tortious acts of an employee. 436 U.S. at 690-94, 98 S.Ct. at 2035-37. The liability of a city must rest on the city's conduct, i.e., an official policy, custom or practice which is causally linked to the conduct of the employee and the resulting injury to the plaintiff. Id. See also Powe v. City of Chicago, 664 F.2d 639, 643 (7th Cir. 1981); Murray v. City of Chicago, 634 F.2d 365, 366-67 (7th Cir. 1980). Thus the theory of liability put forward by the plaintiff must be based on the actions of the City rather than the concept of respondeat superior. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. See also Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1975).

In the instant case there is no question that plaintiff alleges deprivation of Gary Lee's constitutionally protected right to life. But the City argues that plaintiff does not state with sufficient particularity any policy, practice or custom of the City which was the proximate cause of that deprivation. We disagree.

  There are a number of cases which recognize that allegations
of a general failure to train, supervise and control law
enforcement officials are sufficient to state a claim against
a municipality and sustain a verdict if evidence is adduced
sufficient to prove the general failure and that it was a
proximate cause of the injury complained of. See Hays v.
Jefferson County, 668 F.2d 869 (6th Cir. 1982); Herrera v.
Valentine, 653 F.2d 1220, 1224-25 (8th Cir. 1981); Turpin v.
Mailet, 619 F.2d 196 (2d Cir.), cert. denied, 449 U.S. 1016,
101 S.Ct. 577, 66 L.Ed.2d 475 (1980); McClelland v. Facteau,
610 F.2d 693 (10th Cir. 1979); Owens v. Haas, 601 F.2d 1242
(2d Cir.), cert. denied 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d
407

(1979); Sims v. Adams, 537 F.2d 829 (5th Cir. 1976); Smith v.
Hill, 510 F. Supp. 767 (D.Utah 1980); Edmonds v. Dillon,
485 F. Supp. 722 (N.D.Ohio 1980); Wilkenson v. Ellis, 484 F. Supp. 1072
 (E.D.Pa. 1980); Popow v. City of Margate, 476 F. Supp. 1237
(D.N.J. 1979); Cook v. City of Miami, 464 F. Supp. 737
(S.D.Fla. 1979); Leite v. City of Providence, 463 F. Supp. 585
(D.R.I. 1978).

The City relies on a number of unpublished opinions in this district asserting that allegations of a single unconstitutional act are insufficient to state a claim against a municipality.*fn2 There is substantial disagreement in this district over what level of specificity in pleading is required under § 1983. Compare Villa v. Franzen, 511 F. Supp. 231, 232, 235 (N.D.Ill. 1981) and Thompson v. Village of Evergreen, 503 F. Supp. 251, 252 (N.D.Ill. 1980); with Williams v. City of Chicago, 525 F. Supp. 85 (N.D.Ill. 1981) and Spriggs v. City of Chicago, 523 F. Supp. 138 (N.D.Ill. 1981) and Hamrick v. Lewis, 515 F. Supp. 983 (N.D.Ill. 1981). Certain of our colleagues have held that allegations of an unconstitutional policy on the part of a municipality are not adequate unless they are supported by particular factual allegations which demonstrate that the alleged conduct is more than an isolated incident. See Williams, 525 F. Supp. at 90; Thedford v. Joyce, No. 79 C 3061 (N.D.Ill. July 8, 1980). See also Smith v. Ambrogio, 456 F. Supp. 1130 (D.Conn. 1978). But the teaching of the Supreme Court in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 611 (1957) and the pleading concepts of Fed.R.Civ.P. 8(a) are no less applicable to § 1983 actions than to any other lawsuit. As the Court in Conley stated:

  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. 355 U.S. at 45-46, 78 S.Ct. at 101-102.

It is true that the requirement of a policy on which to predicate liability of a municipality under Monell can be easily alleged by a plaintiff. But Rule 8(a) does not distinguish between different types of claims. Cf. Rule 9(g). We are in agreement with the comments of our colleague Judge Shadur concerning the apparent distinction between the federal rules and the strict pleading requirements imposed by some opinions in § 1983 cases:

  [S]uch judicial legislation [is] difficult to
  reconcile 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
  the circumstances constituting fraud or mistake,
  and Rule 9(g), requiring specific statements of
  items of special damages. There is a necessary
  negative implication from a failure to specify a
  comparable requirement for Section ...

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