United States District Court, Northern District of Illinois, E.D
August 3, 1982
KENNETH HAUGABROOK, PLAINTIFF,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Haugabrook brought this civil rights action
pursuant to the Civil Rights Acts of 1866 and 1871, as amended,
42 U.S.C. § 1981, 1983, 1985 and 1986
(1976), seeking damages for injuries allegedly sustained as a
consequence of police misconduct. Haugabrook, who is black,
alleges that he was wrongfully arrested, searched, kidnapped and
beaten by Chicago Police Officers Fred Tilford and Ray Ward after
casually addressing the two officers, who are also black, as
"brothers" outside the Executive Club Tavern at 6355 South Damen
Avenue in Chicago on the evening of September 30, 1980.
Haugabrook also alleges that Sergeant Henry Pates conspired with
Tilford and Ward in an attempt to discourage Haugabrook from
filing a complaint against the two officers. Finally, Haugabrook
alleges that Superintendent of Police Richard Brzeczek and the
City of Chicago knew or should have known that Officers Tilford
and Ward had a propensity to use excessive force against fellow
blacks and that the practice by Brzeczek and the City of
condoning the officers' prior misconduct precipitated
This matter is presently before the Court on the motion of
Brzeczek and the City for summary judgment pursuant to
Fed.R.Civ.P. 56. In support of a motion for summary judgment, the
moving party has the burden of showing that there is no dispute
as to any genuine issue of fact material to a judgment in its
favor as a matter of law, Cedillo v. International Association of
Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7,
10 (7th Cir. 1979); Fitzsimmons v. Best, 528 F.2d 692, 694 (7th
Cir. 1976). The non-moving party is entitled to all reasonable
inferences that can be made in its favor from the evidence in the
record. United States v. Diebold, Inc., 369 U.S. 654, 655, 82
S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Moutoux v. Gulling Auto
Electric, 295 F.2d 573, 576 (7th Cir. 1961).
Section 1983 Claims
In order to prevail on a section 1983 claim against a
supervisory official such as Brzeczek, a plaintiff must establish
an affirmative link between his injury and the supervisor's
failure to act in the face of unconstitutional action by
subordinates. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1976); Murray v. City of Chicago, 634 F.2d 365, 367
(7th Cir. 1980); Hamrick v. Lewis, 515 F. Supp. 983 (N.D.Ill.
1981). As far as the City is concerned, it is settled that in
order to hold a municipality liable under section 1983, a
plaintiff must establish that he was injured by official
misconduct or wrongdoing perpetrated pursuant to an officially
sanctioned policy, custom or practice that causally links the
municipality to the alleged wrongdoing and injury. 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); Powe v. City of
Chicago, 664 F.2d 639 (7th Cir. 1981); Murray v. City of Chicago,
634 F.2d 365 (7th Cir. 1980); Rivera v. Farrell, 538 F. Supp. 291
(N.D.Ill. 1982); Hamrick v. Lewis, 515 F. Supp. 983, 985-86
(N.D.Ill. 1981). Thus, it has generally been held that "where
senior personnel have knowledge of a pattern of constitutionally
offensive acts by their subordinates but fail to take remedial
steps, the municipality may be held liable for a subsequent
violation if the superior's inaction amounts to deliberate
indifference or to tacit authorization of the offensive acts."
Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981); Turpin
v. Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied,
449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); Villa v. Franzen,
511 F. Supp. 231, 235 (N.D.Ill. 1981); Spriggs v. City of Chicago,
523 F. Supp. 138, 142 (N.D.Ill. 1981).
In the wake of the Supreme Court's decision in Parratt v.
Taylor, 451 U.S. 527, 534, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420
(1981), holding that section 1983 does not contain a
state of mind requirement, it is entirely possible that even
negligent conduct by supervisors or policymaking officials let
alone grossly negligent or intentional conduct may support a
civil rights claim against the individual official or the
municipality in an appropriate case. See Means v. City of
Chicago, 535 F. Supp. 455, 462 (N.D.Ill. 1982). But see Hays v.
Jefferson County, 668 F.2d 869 (6th Cir. 1982); Spriggs v. City
of Chicago, 523 F. Supp. 138, 142-43 (N.D.Ill. 1981). We need not
decide the question in the case at bar, however, for we conclude
that the record is devoid of evidence to support a claim against
either Brzeczek or the City under any standard.
In the instant case, Haugabrook alleges that Brzeczek and the
City knew or should have known that Officers Tilford and Ward
"had a propensity to use excessive force upon Black citizens of
the City of Chicago," and that they "failed to properly train,
supervise, regulate or discipline these two officers in the
exercise of their police function." Complaint, ¶ 20. To support
his theory that Brzeczek had knowledge of the alleged violent
propensities of Tilford and Ward, Haugabrook points to the
officers' complaint history records, commonly known as "hard
cards." Officer Tilford's card indicates that during the five and
one-half years since he became a police officer, he received two
citizen complaints for use of excessive force. Tilford's record
indicates that the Chicago Police Department classified both
complaints as "not sustained," meaning that, after an appropriate
investigation, there was insufficient evidence to either prove or
disprove the allegations. Defense Exhibit 1. Officer Ward's card
reveals fifteen citizen complaints alleging the use of excessive
force in the six and one-half years that he has been a police
officer.*fn2 Ward's record indicates that five of the complaints
were found to be "not sustained," nine were found to be
"unfounded," meaning that, after an appropriate investigation,
the department considered them to be false or not supported by
the facts, and the remaining complaint was classified as
"exonerated," meaning that an investigation revealed that the
incident occurred but was lawful and proper. Defense Exhibit 2.
The complaint records of the two officers are the only evidence
cited to support the argument that Brzeczek and, through him, the
City had knowledge that the officers had violent propensities
toward fellow blacks and that such behavior was condoned by
Brzeczek and the City.
On the basis of this evidence, the Court cannot conclude that
Brzeczek or the City knew or should have known of any alleged
violent propensities of Officers Tilford and Ward or that they
failed to train, supervise, regulate or discipline the officers
as alleged in the complaint. Brzeczek's affidavit, which is
unrebutted by Haugabrook, states that his sole knowledge relative
to the complaints against Ward and Tilford is set forth in the
hard cards. As stated above, the recorded allegations of
excessive force made against each officer were investigated by
the Chicago Police Department and found to be either "not
sustained," "unfounded" or, in one case, "exonerated." Haugabrook
has not alleged or shown that Brzeczek knew or should have known
of any unrecorded prior complaints or any other evidence tending
to show that the officers had a tendency to react violently to
black citizens. There is also no evidence to suggest that the
prior recorded charges of excessive force, even if they had been
sustained, were racially motivated. In short, Haugabrook has
provide any basis upon which a court could infer that Brzeczek or
the City negligently, recklessly or intentionally allowed these
two officers with alleged violent propensities toward blacks to
remain in uniform resulting in any injury to the plaintiff.*fn3
Accordingly, there being no genuine issue of fact material to
a judgment in their favor as a matter of law, defendants' motions
for summary judgment on the section 1983 claims will be granted.
Section 1981 Claim
The more difficult question in this case concerns Haugabrook's
claim that the City should be held liable for the allegedly
racially-motivated acts of Officers Tilford and Ward on a theory
of respondeat superior under the Civil Rights Act of 1866, as
amended, 42 U.S.C. § 1981.*fn4 The specific allegations of racial
discrimination are set forth in the complaint as follows:
14. Plaintiff was subjected to the above officially
inflicted punishment, pains and penalties, and loss
of property, because of his race, as the Defendant's
[sic] WARD and TILFORD did not consider the Plaintiff
to be their "brother." Plaintiff was denied the
"equal benefit of laws and proceeding" and "security"
to his "person and property" because of his race.
19. These officers, acting while clothed with the
authority of the City of Chicago, and motivated by
racial bias towards the Plaintiff, unlawfully caused
grievous bodily harm to the Plaintiff.
The City strenuously argues that a municipality should not, as a
matter of law, be held vicariously liable under section 1981 for
the official misconduct of its employees.*fn5
The City's argument is
based on the
Supreme Court's seminal decision, 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), in which the Court held that municipalities
are not subject to liability on a respondeat superior basis in
suits brought under section 1983.
Prior to Monell, municipalities were not considered "persons"
within the meaning of section 1983 and therefore were immune from
liability under that section. See Monroe v. Pape, 365 U.S. 167,
81 S.Ct. 473, 5 L.Ed.2d 492 (1961). But a number of courts,
including the United States Court of Appeals for the Seventh
Circuit, held that the municipal immunity recognized under
section 1983, which was enacted by Congress to enforce the
fourteenth amendment as section 1 of the Civil Rights Act of
1871, did not extend to suits brought under section 1981, which
was originally enacted under the thirteenth amendment as section
1 of the Civil Rights Act of 1866 and later reenacted under the
fourteenth amendment as section 16 of the Enforcement Act of May
31, 1870. Garner v. Giarrusso, 571 F.2d 1330, 1338-41 (5th Cir.
1978); United States v. City of Chicago, 549 F.2d 415, 424-25
(7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d
155 (1977); Mahone v. Waddle, 564 F.2d 1018, 1030-37 (3d Cir.
1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147
(1978); Sethy v. Alameda County Water District, 545 F.2d 1157,
1160 (9th Cir. 1976). These courts emphasized the substantial
differences between the two statutes as indicated by their
respective language, purpose and legislative history, and they
noted, as has the Supreme Court on several occasions, that the
civil rights statutes should be construed individually since
"[d]ifferent problems of statutory meaning are presented by two
enactments deriving from different constitutional sources,"
District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602,
605, 34 L.Ed.2d 613 (1972), quoting Monroe v. Pape, supra, 365
U.S. at 205-06, 81 S.Ct. at 493-494 (Frankfurter, J.,
dissenting). See Garner v. Giarrusso, supra, 571 F.2d at 1340;
Mahone v. Waddle, supra, 564 F.2d at 1030-31; Sethy v. Alameda
County Water District, supra, 545 F.2d at 1160.
In rejecting the notion that a municipality could be held
vicariously liable for the unconstitutional acts of its
employees, while recognizing that a municipality was a "person"
subject to liability under section 1983 under some circumstances,
the Monell Court relied upon the peculiar language, purpose and
legislative history of that statute. The Court emphasized the
limiting language of the statute that requires a strict causal
connection between the conduct of a person acting under color of
state law and injury to the plaintiff. 436 U.S. at 691-92, 98
S.Ct. at 2036. "Equally important," said the Court, was Congress'
rejection of the Sherman Amendment which would have imposed
vicarious liability upon a municipality for the private actions
of its citizens. 436 U.S. at 693-94, 98 S.Ct. at 2037. The Court
concluded that "when Congress' rejection of the only form of
vicarious liability presented to it is combined with the absence
of any language in § 1983 which can easily be construed to create
respondeat superior liability, the inference that Congress did
not intend to impose such liability is quite strong." 436 U.S. at
692 n. 57, 98 S.Ct. at 2037 n. 57.
Neither rationale enunciated in Monell has any bearing on
section 1981, however. The unequivocal language of that section
and its legislative history "manifests Congress' purpose to enact
sweeping legislation implementing the thirteenth amendment to
abolish all the remaining badges and vestiges of the slavery
system." Mahone v. Waddle, supra, 564 F.2d at 1030. While section
1983 is specifically directed at proscribing only that conduct
undertaken by persons acting under color of state law,
section 1981 contains no such limitation and it has been held to
apply to private as well as public acts of discrimination without
regard to who the actor might be as long as the plaintiff
suffered discrimination because of his or her race. Runyon v.
McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976);
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20
L.Ed.2d 1189 (1968). Moreover, the legislative history of section
1981 does not evidence any intention to reject the concept of
respondeat superior ordinarily applicable in common-law tort
actions or to import into that statute any strict causation
requirements as are apparent in the debates on and the wording of
section 1983.*fn6 In sum, as one court has bluntly stated:
[t]here is nothing in § 1981 to lead a court to
believe that respondeat superior is inapplicable to
actions brought under that statute and every court
which has engaged in a meaningful analysis of the
issue has so held.
Jones v. Local 520, International Union of Operating Engineers,
524 F. Supp. 487
, 492 (S.D.Ill. 1981) (citations omitted).
There is ample authority in this and other circuits for the
proposition that private corporate defendants may be held liable
on a respondeat superior basis under section 1981 for the
racially discriminatory conduct of their employees. Miller v.
Bank of America, 600 F.2d 211, 213 (9th Cir. 1979); Flowers v.
Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir. 1977); Jones
v. Local 520, supra; Commonwealth of Pennsylvania v. Local 542,
International Union of Operating Engineers, 469 F. Supp. 329,
401-13 (E.D.Pa. 1978). Furthermore, there is no principled reason
to distinguish between private and public employers based upon
the wording or history and purpose of section 1981, and a growing
body of case law supports the notion that a municipality also can
be held vicariously liable for the official acts of its
employees. Mahone v. Waddle, supra; Bell v. City of Milwaukee,
536 F. Supp. 462, 474 (E.D.Wis. 1982); Williams v. City of New
York, 539 F. Supp. 795 (S.D.N.Y. 1982); Jones v. City of
Philadelphia, 491 F. Supp. 284, 288 (E.D.Pa. 1980); Preston v.
City of York, 452 F. Supp. 52, 54 (M.D.Pa. 1978); Croswell v.
O'Hara, 443 F. Supp. 895, 898 (E.D.Pa. 1978). See generally
Comment, Developments in the Law — Section 1981, 15
Harv.Civ.R.Civ.Lib.L.Rev. 29, 204-10 (1980).*fn7 All these cases,
except Williams,*fn8 involved allegations that the plaintiff was
abused by police officers because of his race as in the case at
Accordingly the City's motion for summary judgment on
Haugabrook's section 1981 claim will be denied.
For the reasons set forth above, defendants' motion for summary
granted with respect to plaintiff's section 1983 claims, but the
City's motion is denied with respect to plaintiff's section 1981
claim. It is so ordered.