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RIVERA v. FARRELL

April 28, 1982

CARLOS RIVERA, CLEOFE RIVERA, AIDA RIVERA, RUBEN RIVERA, JUDITH RIVERA, AND MARSHA RIVERA, PLAINTIFFS,
v.
DONALD FARRELL AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Carlos Rivera ("Rivera"), together with five family members, brought this civil rights action pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983 and 1985,*fn1 against Chicago Police Officer Donald Farrell and the City of Chicago alleging that he was unlawfully beaten and arrested without probable cause, that family members were physically abused, and that their home was illegally searched by Farrell and other unnamed Chicago police officers on March 11, 1981. Rivera further alleges that the Chicago Police Department and the City of Chicago knew or should have known of "this systematic pattern of conduct"*fn2 and that their failure to take disciplinary action against the offending officers or compensate plaintiffs for their injuries is the result of their discrimination against Latin-Americans.*fn3 This matter is presently before the Court on the City's motion to dismiss the complaint as to itself for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6).*fn4 For the reasons set forth below, the City's motion will be granted.

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 United States Court of Appeals for 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, 564 F.2d 780, 783 (7th Cir. 1977).

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 United States Supreme Court held that municipalities and other local government entities are "persons" subject to liability under the Civil Rights Act of 1871, 42 U.S.C. § 1983,*fn5 when the constitutional deprivation suffered by the plaintiff can be causally linked to a governmental `policy' or `custom'. As Judge Marshall recently noted in Means v. City of Chicago, 535 F. Supp. 455, 459 (N.D.Ill., 1982), however, there is some disagreement in this district with regard to the specificity of pleading required in the context of a suit brought against a municipality or other local government entity under section 1983 after Monell. Compare Villa v. Franzen, 511 F. Supp. 231, 235 (N.D.Ill. 1981), and Thompson v. Village of Evergreen Park, Ill., 503 F. Supp. 251, 252 (N.D.Ill. 1981), with Williams v. City of Chicago, 525 F. Supp. 85, 88-89 (N.D.Ill. 1981); Spriggs v. City of Chicago, 523 F. Supp. 138, 144-45 (N.D.Ill. 1981); Hamrick v. Lewis, 515 F. Supp. 983, 986 (N.D.Ill. 1981); and Gomez v. City of West Chicago, 506 F. Supp. 1241, 1245 (N.D.Ill. 1981).

In Villa and Thompson, for example, Judge Shadur endorsed a liberal standard of pleading in light of what he regarded as the mandate of Fed.R.Civ.P. 8(a) holding that "a plaintiff need only prepare allegations that track the Monell requirement of a governmental `policy' or `custom' [in order to] step over the very low threshold of Conley." Villa v. Franzen, supra, 511 F. Supp. at 235.*fn6 Under this formulation, a complaint against a municipality is apparently sufficient if it states that the plaintiff was deprived of a constitutionally protected right on one occasion and that the deprivation was caused by an unspecified official policy or custom. The other decisions — Williams and Spriggs, authored by Judge Getzendanner, and Hamrick and Gomez, authored by this Court — also acknowledge the relatively low threshold burden of federal notice pleading. These opinions go on to hold, however, that Monell implicitly requires that if municipal liability is to be premised upon an unarticulated governmental policy, custom or practice, such custom, policy or practice must be evidenced by more than a single wrongful act. Therefore, a section 1983 plaintiff must plead more than the existence of a single wrongful act allegedly perpetrated by governmental employees coupled with conclusory allegations of custom or policy in order to properly state a claim for relief against a municipality or governmental entity.*fn7 Rather, in addition to pleading the single allegedly unconstitutional act, the complaint must also contain allegations that envision proof of a pattern of similar incidents of wrongdoing that might evidence the existence of a bonafide policy, custom or practice unofficially sanctioned by the defendant municipality.*fn8

Recently, in Means, Judge Marshall seemingly endorsed the approach taken by Judge Shadur in Villa and Thompson but stated that although the complaint in Means only detailed the facts of one incident, "it clearly contemplates proof of more than this incident in order to prove the alleged policy; it contemplates proof of numerous instances of misconduct upon which the City failed to act." Means v. City of Chicago, 535 F. Supp. 455 at 460 (N.D.Ill., 1982). Thus, the complaint against the City in Means was apparently much more detailed than the complaint against the Commission in Villa, and was apparently sufficient to satisfy the standard applied in Hamrick and Spriggs.

The various approaches taken in these opinions evidence the courts' efforts to draw a principled line between the admittedly generous standards of federal notice pleading and the principle that a pleading is insufficient if it merely alleges the conclusions of the pleader without any factual support. See, e.g., 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), and cases cited therein. While the opinions cited above do indicate some disagreement, whatever the extent, with respect to the degree of specificity required in pleading a constitutional claim against a municipality under Monell, the disagreement apparently only extends to the requirements for pleading a claim based on official acquiescence in a pattern or practice of unconstitutional conduct by municipal employees. The cases discussed above did not involve the other basis for municipal liability articulated in Monell, predicated upon an affirmatively promulgated official policy, ordinance, regulation or decision mandating assertedly unconstitutional conduct by city employees. In this Court's view, some of the disagreement with respect to the threshold pleading burden in section 1983 cases might be cured or at least placed in proper perspective by a brief discussion of the two predicates for municipal liability identified in Monell and the corresponding pleading requirements both in general and in particular application to the case at bar.

In Monell, the Supreme Court stated that its "analysis of the legislative history of the Civil Rights Act of 1871 compell[ed] the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." (Emphasis in original). Monell v. Department of Social Services, supra, 436 U.S. at 690, 98 S.Ct. at 2035. At the same time, the Court reaffirmed the principle enunciated in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that municipalities could not be held liable on a respondeat superior basis for the constitutional torts of their employees. Id., 436 U.S. at 663 n. 7 and 691, 98 S.Ct. at 2022 n. 7 and 2036. Accordingly, the Court held that a municipality might be held liable under section 1983 if "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by that body's officers," or, "for constitutional deprivations visited pursuant to governmental `custom' even though such custom has not received formal approval through the body's official decisionmaking channels." Id., 436 U.S. at 690, 98 S.Ct. at 2035-46. In this way, the Court sought to insure that liability would not be imposed upon a municipality simply on a respondeat superior basis on the isolated occasion when a municipal employee breaches official policy and violates a citizen's constitutional rights. Municipal liability would be imposed only if an official, while performing his duties in accordance with official policy, ordinance, regulation, decision or custom, violates another's rights on the theory that a municipality should be held liable when it has established or perpetuated an unconstitutional practice that causes injury to its citizens. See Powe v. City of Chicago, 664 F.2d 639, 649 (7th Cir. 1981).

The first predicate for municipal liability described in Monell, based on a `policy statement, ordinance, regulation, or decision,' implies that the city or agency has taken some type of affirmative action to establish the assertedly unconstitutional policy pursuant to which its employee allegedly deprived another of his or her constitutional rights. This was the situation in Monell itself, where the plaintiff challenged the official policy of the Department of Social Services and the Board of Education of the City of New York, embodied in certain rules and regulations of those agencies, which compelled pregnant women employees to take unpaid leaves of absence before such leaves were medically necessary. Monell v. Department of Social Services of the City of New York, 532 F.2d 259, 260-61 (2d Cir. 1976), reversed, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In such a context, it is not necessary to allege anything more than a single incident of unconstitutional conduct coupled with the supposedly unconstitutional affirmative policy that mandated such action*fn9 in order to state a claim against the city or agency for injury occasioned by its officially adopted position. In most cases involving an affirmative policy statement, statute, ordinance, rule, regulation or decision, the government's official position can be determined by reference to a written codification, memorandum or other document. In some cases, however, an affirmative policy or decision, though unwritten, may have been so clearly articulated by officials either publicly or within the confines of the government itself that it is susceptible of direct proof establishing its existence.*fn10 In either case, the affirmative promulgation of the policy, ordinance, regulation, etc. and the single unconstitutional act perpetrated pursuant to that official policy is sufficient to link the municipality to the alleged wrongdoing at the pleading stage.

The second basis for municipal liability under section 1983 discussed in Monell arises from the government's passive acquiescence in a pattern or series of incidents of unconstitutional conduct which, in the face of such official acquiescence and tacit authorization, constitutes a `custom' or `usage' actionable under the civil rights laws, 42 U.S.C. § 1983. In this context, it is necessary to allege more than a single incident of unconstitutional conduct in order to state a claim for relief under Monell. This conclusion appears to follow quite clearly from language in Monell and Adickes v. S.H. Kress and Company, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), cited and discussed in Monell itself. In both cases, the Court made it clear that a de facto custom or usage exists only when it is possible that future behavior will conform to the state's informal command evidenced by its past acquiescence in unconstitutional conduct. In Adickes, the Court stated that for purposes of section 1983, a custom or usage is actionable only when it has "the force of law by virtue of the persistent practices of state officials." Adickes v. S.H. Kress and Co., supra, 398 U.S. at 167,90 S.Ct. at 1613. In Monell, the Court cited Adickes with approval in its discussion of the second predicate for municipal liability saying that "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials. . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law." Monell, supra, 436 U.S. at 691, 98 S.Ct. at 2036.

Since Monell, a number of federal courts of appeals, including the United States Court of Appeals for the Seventh Circuit, have held that a section 1983 complaint that purports to state a claim for relief against a municipality based upon its alleged acquiescence in the unconstitutional conduct of its employees but which does not contain allegations that envision proof of a pattern or series of similar incidents of unconstitutional conduct is insufficient to meet even the rather low threshold burden of federal notice pleading.*fn11 See, e.g., Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981); Walters v. City of Ocean Springs, 626 F.2d 1317, 1323 (5th Cir. 1980); Turpin v. Mailet, 619 F.2d 196, 199 (2d Cir.), cert. denied sub nom., Turpin v. West Haven, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). This was the basis for the holdings in Hamrick, Gomez, Spriggs and Williams, discussed earlier in this opinion, since those cases all involved allegations of the City's passive acquiescence in an allegedly unconstitutional pattern of conduct by municipal employees rather than allegations that a written or clearly articulated policy, ordinance, regulation or decision affirmatively mandated the alleged unconstitutional conduct of municipal employees.

As our court of appeals noted in Sterling v. Village of Maywood, 579 F.2d 1350, 1356-57 (7th Cir. 1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979), to predicate municipal liability under section 1983 upon the existence of an isolated constitutional wrong perpetrated by a city employee in the absence of an affirmative policy or decision mandating that the employee take such action would amount to visiting liability upon the municipality on the basis of respondeat superior, a result explicitly rejected by the Supreme Court in Monell. See also Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981). It is surely not unreasonable to require that a plaintiff seeking to impose liability upon a municipality based on its passive acquiescence in a pattern or practice of unconstitutional acts such as that which caused him injury plead the existence of such a pattern of practice by alleging, at least on information and belief, that he or others similarly situated were victimized on more than one occasion in the unconstitutional manner alleged in the complaint. Such a requirement does not offend the liberal pleading standard of the federal ...


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