The opinion of the court was delivered by: Leighton, District Judge.
Plaintiffs George and Mabel Hill bring this action pursuant
to 42 U.S.C. § 1983 against Cook County, Richard Elrod, Cook
County Sheriff, and four Cook County Sheriff's police officers,
alleging that defendants' actions violated their rights as
protected by the First, Fourth, Fifth and Fourteenth Amendments
to the United
States Constitution. Defendants Cook County, Richard Elrod and
Officer Leonard Koziol have presented, pursuant to Fed.R.
Civ.P. 12(b)(6), separate motions to dismiss Count II of the
complaint for failure to state a claim for which relief can be
granted. After careful consideration of the parties'
submissions and the relevant law, the court grants Officer
Koziol's motion to dismiss and denies the motions of Cook
County and Sheriff Elrod. The facts as alleged in plaintiffs'
complaint and taken as true, are as follows.
On September 27, 1980 at approximately 12:45 p.m.,
plaintiffs left the Now and Then Antique Shop, which is
located at 6928 N. Clark Street in Chicago. As they attempted
to get into their car, they were arrested by Officers
Marinelli and O'Dea for allegedly attempting to sell stolen
jewelry. The arrest was made without a warrant and without
probable cause. Plaintiffs were taken to the headquarters of
the Cook County Sheriff's Police in Maywood, Illinois. There
they were interrogated by defendants Marinelli and O'Dea.
During the interrogation, plaintiffs were subjected to verbal
abuse, harrassment, threats of physical injury and threats of
loss of property. Plaintiff Mabel Hill began suffering stress
related symptoms such as extreme anxiety, loss of breath and
hysteria. She requested and was refused medical attention. She
also was denied access to the bathroom for an extended period
of time. When she was finally allowed to use the washroom she
was subjected to a body cavity search by an unidentified
female officer. While plaintiffs were in custody, jewelry and
other valuables were taken from their possession by the
officers but they were not given any receipt for their
property. After more than six hours, plaintiffs were released;
they were never formally charged, they were not informed of
their rights, nor were they given the reason for the detention
of their persons and their property. On September 30, 1980
plaintiffs filed a complaint with and gave statements to the
Internal Investigation Department of the Cook County Sheriff's
Police regarding their arrest and detention on September 27.
An investigation was conducted by Officer Koziol which
resulted in no action being taken by the Sheriff's Office.
Plaintiffs allege that the deprivation of their constitutional
rights was caused by Cook County and Elrod's negligent failure
to instruct, supervise, control, investigate and discipline
the officers involved in this action, and their direct or
indirect approval or ratification of the officers' conduct.
Claims Against Cook County
Cook County's motion to dismiss raises two issues. 1.
Whether plaintiffs have sufficiently alleged a custom or
policy that is causally linked to the alleged constitutional
deprivations. 2. Whether negligence is sufficient to state a
claim under Section 1983. Resolution of these issues requires
a review of the applicable law.
A municipality's liability under Section 1983 is governed by
the Supreme Court's ruling 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). Under that decision, a municipality is
not vicariously liable under Section 1983 for the tortious acts
of its employees. It can, however, be held liable for
constitutional violations which are proximately caused by any
official policy or custom of the municipality. "Official
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 (2nd Cir. 1980).
Several courts have held that allegations of a general failure
to train, supervise and control police officers are sufficient
to state a claim against a municipality under Monell. Herrera
v. Valentine, 653 F.2d 1220, 1224-5 (8th Cir. 1981); Turpin;
McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979); Owens v.
Haas, 601 F.2d 1242 (2d Cir. 1979), 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); Means v. City of Chicago, 535 F. Supp. 455
(N.D.Ill. 1982); Smith v. Hill, 510 F. Supp. 767 (D.Utah 1980);
Edmonds v. Dillin, 485 F. Supp. 722 (N.D.Ohio 1980); Wilkinson
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). Under these
cases plaintiffs have sufficiently alleged a policy of Cook
County which would support a claim under Section 1983.
Some courts in this district, however, have added an
additional requirement that necessitates looking to the facts
underlying the allegations. In several recent opinions, these
courts have held that allegations of a single unconstitutional
act are insufficient to establish a policy and state a claim
against a municipality. 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); Gomez v. City of West Chicago, 506 F. Supp. 1241
(N.D.Ill. 1981). The problem with the approach adopted in
these cases is that it imposes a pleading requirement on
Section 1983 cases greater than that found in the Federal Rules
and the teachings of the Supreme Court. As the Court held in
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2
L.Ed.2d 80 (1957):
. . 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.
The fact that the policy required to state a claim under
Monell can be easily alleged, does not, in this court's view
abrogate established principles of federal pleading. In a
recent opinion, Judge Shadur addressed the apparent distinction
between the federal rules and the strict pleading requirements
imposed by some courts in Section 1983 cases. In words which
this court adopts, he said that:
Although it is strongly sympathetic to the
problems of a governmental body confronted with
claims predicated on nothing more than
supposition, the court finds it difficult to
reconcile such judicial legislation 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
circumstances constituting fraud or mistake, and
Rule 9(g), requiring specific statement of items of
special damages. There is a necessary negative
implication from a failure to specify a comparable
requirement for Section 1983 cases — and certainly
the Rules do not so specify.
Thompson v. Village of Evergreen Park, 503 F. Supp. 251, 252
(N.D.Ill. 1980); accord Means, 535 F. Supp. at 459. This court
agrees with Judge Shadur that the imposition of a requirement
of factual specificity in Section 1983 cases is inconsistent
with the provisions of Rules 8 and 9. A plaintiff is not
required to enumerate a detailed factual basis in support of
his policy allegations in order to state a claim against a
municipality under Section 1983. All that is required are
allegations of a specific policy or custom that can, under some
set of facts, be causally linked to the injury claimed.
In Count II of their complaint, plaintiffs have alleged a
specific policy of Cook County; the failure to train,
supervise and discipline its police officers. Although the
causal connection between this policy and plaintiffs' injuries
may not be a strong one, this court is constrained from
concluding that plaintiffs can prove no set of facts which
would establish such a connection. The County can be held
liable if plaintiffs can show that it had notice of prior
misconduct on the part of the officers involved,
Herrera, 653 F.2d at 1224; Turpin, 619 F.2d at 201, or if they
prove that the training of the police officers was done in a
grossly negligent manner. Herrera, 653 F.2d at 1224; Owens, 601
F.2d at 1246; Leite, 463 F. Supp. at 590. Thus, plaintiffs
have satisfied the requirements of Monell and have adequately
alleged a policy or custom that can be causally linked to their
Plaintiffs have alleged that Cook County acted negligently
in its training, supervision and discipline of its police
officers. The question of whether a claim under Section 1983
may be founded upon negligent conduct has engendered
substantial disagreement among the federal courts. The
majority of courts, including the Seventh Circuit in
Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976) (en banc),
cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529
(1978), have held that negligence is not sufficient to support
a claim under Section 1983. The Supreme Court has never
directly ruled on the issue. However, in its recent decision
Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420
(1981), the Court made it clear that negligence actions are not
foreclosed under Section 1983.
Nothing in the language of § 1983 or its
legislative history limits the statute solely to
intentional deprivations of constitutional rights.
In Baker v. McClollan [443 U.S. 137, 99 S.Ct. 2689,
61 L.Ed.2d 433], we suggested that simply because a
wrong was negligently as opposed to intentionally
committed did not foreclose the possibility that
such action could be brought under § 1983. . . .
Section 1983, unlike its criminal counterpart,
18 U.S.C. § 242, has never been found by this Court to
contain a state-of-mind requirement.
Parratt, 451 U.S. at 534, 101 S.Ct. at 1912. This court agrees
with the view expressed by Judge Marshall in Means v. City of
Chicago, 535 F. Supp. at 462, that the language and reasoning of
Parratt put the majority position — that more than negligence
is needed to state a claim against a municipality under Section
1983 — in question. However, the court need not address this
issue here because the complaint includes allegations of
approval and ratification of the alleged misconduct, and it can
fairly be construed to include allegations of gross negligence
and recklessness. ...