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GLARRUSSO v. CITY OF CHICAGO

May 28, 1982

LOUIS GIARRUSSO, PLAINTIFF,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff, Louis P. Giarrusso, brings this action pursuant to 42 U.S.C. § 1983 alleging that he was unlawfully deprived of his liberty by defendants when he was incarcerated between May 5, 1980 and December 4, 1980 on the basis of an allegedly false charge of motor vehicle theft. Jurisdiction is asserted pursuant to 28 U.S.C. § 1343. Plaintiff, in addition to his civil rights claim (Count I)*fn1 which is asserted against all defendants, also asserts claims of 1) false imprisonment against all defendants, 2) malicious prosecution against defendants Mario Garcia and the City of Chicago, and 3) negligence against all defendants. The cause comes before the court on the Motions to Dismiss of Defendants City of Chicago, Mario Garcia, John Castro, Ray Johnson and Pedro Garcia and the Motion for Summary Judgment of Defendant Shelby Rowe.

FACTS

Plaintiff alleges that on or about March 16, 1980, the Defendant Mario Garcia, along with Defendants Pedro Garcia and John Castro, all police officers employed by the City of Chicago on the relevant date, prepared a Chicago Police Department General Offense Case Report stating that the plaintiff was guilty of the theft of a vehicle owned by Mario Garcia. The report was prepared, it is alleged, despite the fact that defendants knew or should have known that the plaintiff was not guilty of criminal conduct. Rather, plaintiff claims, defendant Mario Garcia instituted the false complaint merely to collect a debt owed Garcia by the plaintiff. (Complaint, Count III, ¶ 4).

Plaintiff further asserts that Defendant Ray Johnson, also a police officer, reviewed the charges instituted by the Plaintiff, determined that the charges were unfounded, informed the Defendant Mario Garcia of this determination and yet failed to inform the Auto Reporting Desk that the charges were unfounded. It is also charged that Johnson failed to remove the vehicle from the Chicago Police Department's stolen vehicle file.

As a result of these events, plaintiff was arrested on May 8, 1980 and incarcerated from that date until December 4, 1980. It appears that Mr. Giarrusso was unable to leave jail on bond because of the issuance of a warrant for his arrest based on an alleged parole violation by the plaintiff. This warrant was issued by Shelby Rowe despite the fact that according to plaintiff, Rowe knew or should have known that no just cause existed for the warrant because plaintiff was in full compliance with the terms of his parole.

THE CITY OF CHICAGO'S MOTION TO DISMISS

There is no question that a municipality may be held liable as a "person" under § 1983. 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). Liability may not, however, be based solely on a theory of respondeat superior. Id. at 691, 98 S.Ct. at 2036. Rather, a municipality may be required to respond in damages only for that unconstitutional action which either

  1.  "implements or executes a policy statement,
      ordinance, regulation, or decision officially
      adopted and promulgated by that body's
      officers," or
  2.  constitutes a "governmental `custom' even
      though such a custom has not received formal
      approval through the body's official
      decision-making channels."

Id. at 690-91, 98 S.Ct. at 2035-36. It is the latter type of "official policy" for which plaintiff seeks to hold the City of Chicago responsible in the instant case. This type of policy has been defined to include the tacit or implied approval, authorization or encouragement of police misconduct. Turpin v. Mailet, 619 F.2d 196, 201-202 (2d Cir.), cert. den. sub. nom., Turpin v. West Haven, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980).

There is substantial controversy in this district as to the appropriate level of specificity required to adequately plead a Monell policy claim of the type charged here against a municipality; compare e.g. Rivera, et al. v. Donald Farrell et al., 538 F. Supp. 291 (N.D.Ill. 1982) and Means v. The City of Chicago, 535 F. Supp. 455 (N.D.Ill. 1982). This court is of the view, however, that such a complaint must be dismissed if, when subjected to careful examination, the complaint appears to have merely attached a conclusory allegation of "policy" to what is in essence a claim based on a single unconstitutional act. See Rivera at 298. This Court believes that this is such a case. Accordingly, plaintiff's § 1983 claim against the City is dismissed.

The facts of the case have already been set out. With regard to the City of Chicago, plaintiff has made the following allegations:

  A.  The Chicago Police Department initiated the
      criminal prosecution of the Plaintiff and
      continued with the prosecution even though it
      knew or should have known that the
      prosecution of the ...

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