United States District Court, Northern District of Illinois, E.D
April 30, 1982
RAYMOND EKERGREN, PLAINTIFF,
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.
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
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
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
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
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
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 that
indemnification increases the probability that policemen will
misbehave. The court concludes that plaintiff has not alleged
that the identified policy caused the injury of which he
In Powe v. City of Chicago, 664 F.2d 639, 651 (7th Cir.
1981), the Seventh Circuit affirmed the conclusion reached by
this and other district courts, that "the allegation of a
pattern of conduct or a series of acts violative of
constitutional rights will in many cases raise an inference of
municipal policy." E.g., Spriggs v. City of Chicago,
523 F. Supp. 138 (N.D.Ill. 1981). Accordingly, this court has
considered whether the allegations in the complaint relating to
the number of civil rights cases sufficiently identifies a
pattern or series of unconstitutional acts to raise the
inference that there exists a municipal policy condoning such
actions. Initially, the court notes that the number of suits
filed by itself is insufficient, as a certain proportion of
those suits may be groundless and in others the defendants may
prevail. The primary defect with plaintiff's allegations,
however, is a lack of specificity; the number of civil rights
cases is not relevant, only the number of civil rights cases
against Chicago policemen involving unlawful arrests, searches
Furthermore, because the area of arrests, searches and
seizures includes an almost limitless range of factual
situations, the court is of the opinion that even if plaintiff
alleged in detail the number of illegal arrest or search and
seizure cases in which the plaintiffs prevailed, this would
not establish a pattern.
Ekergren would need to identify as well what it was that
made those prior arrests and searches and seizures illegal and
to show that a similar illegality was involved in his case.
Only then could this court determine whether a pattern of
police misconduct existed. Cf. Spriggs, supra, at 143-44, where
this court found a sufficient pattern in allegations that the
police regularly use violence in dealing with black suspects.
General, unspecific allegations of frequent "illegal arrests"
or "illegal searches and seizures," however, fail to establish
any pattern. In the absence of a cognizable pattern of
misconduct, there is no basis for inferring a municipal policy
of condoning police misconduct.
For this same reason, Count II must also fail. In that
count, plaintiff alleged a policy consisting of official
inaction in the face of a pattern of unconstitutional acts,
but the "pattern" alleged is the same one alleged in Count I.
As the court concludes that the alleged pattern is not a
pattern at all, there can be no liability based on a failure
to respond to the pattern.
And even if the allegations did constitute a pattern, in
this case the failure to instruct does not give rise to
municipal liability because it does not rise to the level of
a reckless disregard for the constitutional rights of others.
Cf. Spriggs v. City of Chicago, 523 F. Supp. 138, 143 (N.D.Ill.
Finally, the complaint fails to allege facts showing
personal culpability on the part of Brzeczek and Byrne. It
merely alleges that Byrne is the Mayor of Chicago and that
Brzeczek is the Superintendent of
the Chicago Police Department. The claims against these
defendants must be dismissed in the absence of their personal
involvement, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1972), or of a culpable policy for which they
might be held responsible.
Accordingly, defendants' motion to dismiss the § 1985 claims
and the claims against the City, Byrne and Brzeczek is granted.
The claims against the individual police officers remain.