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EKERGREN v. CITY OF CHICAGO

April 30, 1982

RAYMOND EKERGREN, PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, JANE BYRNE, RICHARD J. BRZECZEK, LAWRENCE THEZAN, AND MICHAEL MICHALEK, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Raymond Ekergren seeks damages and injunctive and declaratory relief against defendants the City of Chicago, Police Superintendent Richard Brzeczek, Mayor Jane Byrne, and Police Officers Lawrence Thezan and Michael Michalek. Ekergren alleges that in February, 1980, the individual police officers illegally*fn* searched his residence, seized certain property and arrested him, and that this conduct occurred as a result of a policy or custom of the City and official defendants. He bases his cause of action on 42 U.S.C. § 1983 and 1985, as well as on a common law action for false imprisonment and damage to reputation.

Defendants have moved to dismiss the complaint against the City and official defendants and to dismiss the § 1985 allegations, for failure to state a claim. For the reasons that follow the motion is granted.

§ 1985

It is well settled that a cause of action for conspiracy under 42 U.S.C. § 1985 requires a showing of "some racial or perhaps otherwise class-based invidiously discriminatory animus," Griffin v. Breckinridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Ekergren argues that he has identified a class, consisting of those citizens who have been the victims of police misconduct. This argument is circular and begs the question; plaintiff argues in effect that defendants discriminate against victims of police misconduct by subjecting them to police misconduct. As plaintiff's complaint does not allege any racial or class-based discrimination, the claims under § 1985 must be dismissed.

Claims Against the City

  Once again, this court must consider what is now a familiar
issue in this district, whether the complaint alleges a
culpable municipal policy or custom pursuant to
Monell

v. New York City Dept. of Social Services, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Powe v. City of Chicago,
664 F.2d 639 (7th Cir. 1981); Ragusa v. Streator Police Dept.,
530 F. Supp. 814 (N.D.Ill. 1981); Williams v. City of Chicago,
525 F. Supp. 85 (N.D.Ill. 1981); Spriggs v. City of Chicago,
523 F. Supp. 138 (N.D.Ill. 1981); Hamrick v. Lewis, 515 F. Supp. 983
(N.D.Ill. 1981); Villa v. Franzen, 511 F. Supp. 231 (N.D.Ill.
1981); Gomez v. City of West Chicago, 506 F. Supp. 1241
(N.D.Ill. 1981); and Magaynes v. City of Chicago, 496 F. Supp. 812
 (N.D.Ill. 1981).

It is now well settled that municipal liability under § 1983 requires an allegation of conduct by an agent of the City that is wrongful under the Constitution or federal law and the existence of a policy or custom that caused the challenged conduct. Powe v. City of Chicago, 664 F.2d 639, 643 (7th Cir. 1981). Here, defendants concede that the complaint alleges unconstitutional conduct by the two officers, but argue that it does not establish either a municipal policy or the element of causation.

In Count I, after recounting in a conclusory fashion the arrest, search and seizure upon which this action is based, Ekergren alleges that in the last ten years certain of the defendants have been found guilty of illegal arrests and searches and seizures in numerous civil rights cases, and that there is an official policy of providing free legal representation to police officers in civil rights cases, although not in other types of cases, and of indemnifying the officers involved for any adverse judgments. He further alleges that this policy promotes continued civil rights violations, presumably on the theory that police officers are less careful in their conduct because they will not incur any personal liability. Finally, he alleges that the supervising defendants[fn**] fail to discipline those officers found guilty of civil rights violations.

In Count II, Ekergren repeats the allegations of Count I and adds the allegation that in the past ten years, the supervising defendants have failed to provide continuing education on the legal development of civil rights concepts as they apply to police conduct. He asserts that this inaction constitutes official indifference to constitutionally protected rights.

The court concludes that Count I defines an official custom or policy with sufficient specificity to survive the liberal standard applicable to a motion to dismiss. The policy alleged is to insulate police officers from the financial consequences of their misconduct while not otherwise disciplining them. The mere existence of a municipal policy is not enough to impose liability under § 1983, however.

Plaintiff must allege that the policy in question caused the constitutional tort. "[T]he 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," Monell, supra, 436 U.S. at 690, 98 S.Ct. at 2035 (emphasis added). "Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B `caused' A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent." Id. at 692, 98 S.Ct. at 2036. Accord, Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981), where the Seventh Circuit stated that "under Monell, the crucial question is whether the unconstitutional acts complained of were caused by a policy or custom of the municipality." (emphasis in original)

In his complaint, Ekergren alleges that the municipal policy or custom "promotes" or "guarantees the continued deprivation of Civil Rights." Such conclusory allegations of causation, standing alone, are insufficient, at least in cases such as this where the connection between the challenged policy (the indemnification of police officers) and the constitutional torts alleged (unlawful arrests, searches and seizures) is not readily apparent. But to establish the causal link, Ekergren further alleges that in the past ten years federal courts have entered "hundreds of judgments finding certain of the defendants guilty of unlawful deprivation of a wide array of rights Constitutionally guaranteed to citizens." (Amended Complaint ¶ 22)

The court presumes that plaintiff would have it infer that the amount of civil rights litigation involving police officers and the number of adverse judgments in such cases proves that the City's policy of indemnification encourages police misconduct. On a motion to dismiss, a plaintiff is entitled to all reasonable inferences flowing from the facts alleged, Powe, supra, at 642, but in this instance the inference is not reasonable because there are too many variables involved. For example, the City's policy of indemnification may lead to an increase in the number of lawsuits filed against police officers, because plaintiffs need not worry about whether the individual officers are judgment proof, but this provides no basis for concluding ...


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