Plaintiff Woodrow Eiland, a black American, has brought this
civil rights action pursuant to 42 U.S.C. § 1981, 1983, and
1985(2) and (3) (1976), alleging that defendants Richard
Hardesty, a Chicago Police Officer, Officers Lunt, Betts, and
Montgomery, the City of Chicago, Richard Brzeczek,
Superintendent of Police, and Frank Nolan, Director of the
Office of Professional Standards deprived him of liberty and
his right to be free from summary punishment without due
process of law, in violation of the fifth and fourteenth
amendments to the Constitution of the United States.
Additionally he alleges that these defendants violated his
fourteenth amendment right to the equal protection of the law;
his eighth and fourteenth amendment rights to be free from
cruel and unusual punishment; his thirteenth amendment right to
be free from badges and indicia of slavery; his first and
fourteenth amendment rights to associate freely and peacefully
assemble; and 42 U.S.C. § 1981, 1983 and 1985(2) and (3)
(1976). The plaintiff also asserts pendant state claims. This
court has jurisdiction under 28 U.S.C. § 1331 (Supp. IV 1980).
Defendants City of Chicago, Richard Brzeczek and Frank Nolan
have presented separate motions to dismiss various counts of
the complaint under Fed.R.Civ.P. 12(b).
The uncontroverted allegations of count one of plaintiff's
second amended complaint assert that on October 7, 1979, at
approximately 1:30 a.m., defendant Hardesty unjustifiably shot
plaintiff who was unarmed and abiding the law. Complaint ¶¶ 11,
12, 13. The shooting took place in the presence of Lunt, Betts
and Montgomery and caused plaintiff grievous bodily injury.
Complaint ¶ 13. The bullet fired by Hardesty entered
plaintiff's right buttock, tore through his intestines, damaged
his colon, and lodged in his left thigh. Complaint ¶ 14. The
shooting was a direct and proximate cause of plaintiff's pain,
suffering mental anguish and continuing disability. Complaint ¶
15. As a direct result of the shooting, plaintiff was required
to undergo extensive surgery and was fitted with a colostomy
bag, thereby suffering humiliation, inconvenience and
psychological neurosis. Complaint ¶ 15.
Count two alleges that after plaintiff was shot, defendants
Hardesty, Lunt, Betts and Montgomery and others presently
unknown, fabricated a story which was given to the Office of
Professional Standards (OPS) in order to cover up the
unjustifiable shooting. Complaint ¶ 17. It is alleged that this
story will be presented by these defendants as their defense in
this case. Id. Count two then alleges that defendant city and
defendants Brzeczek and Nolan exonerated defendant Hardesty for
the shooting as part of a conspiracy to violate the
constitutional rights of plaintiff. Complaint ¶¶ 18, 19, 20.
Count three alleges that defendant city, defendants Brzeczek
and Nolan, and other
supervisory personnel had a duty to plaintiff to properly hire,
screen, train, supervise, control, discipline, assign and/or
transfer the named defendant police officers. Complaint ¶ 24.
It then alleges that defendant Hardesty and some or all of the
other named police officers were not disciplined for prior use
of deadly and excessive force, and other misconduct, although
defendant city and the supervisory defendants knew or should
have known of their violent and/or racist tendencies. Complaint
¶ 25. Count three specifically alleges that the defendant
officers were not properly supervised, assigned or controlled
while on duty on the day of the shooting. Count three then
avers that defendant Hardesty had received numerous excessive
force complaints during a period prior to the instant shooting
yet the supervisory defendants did not discipline,
psychologically test or counsel him as required by police
regulation. Complaint ¶ 26.
Count four alleges that defendants city, Brzeczek and Nolan,
and other supervisory personnel, had in force and effect both
written and de facto policies, regulations, practices, and/or
customs of improperly hiring, screening, training, supervising,
controlling, disciplining and/or assigning Chicago police
officers. It then avers that these interrelated policies
encouraged the use of deadly and excessive force by Chicago
police officers and the covering up of unconstitutional
actions, and were the proximate cause of the unconstitutional
injury alleged in the prior counts. Complaint ¶ 29.
The last three counts of the second amended complaint allege
pendant state claims. Count five alleges that defendant
Hardesty's actions constituted assault and battery, and that
they were done maliciously and with punitive intent. Complaint
¶¶ 31, 32. Count six states that defendant police officers and
defendant Brzeczek were acting within the scope of their
employment, and that the acts alleged in count five are
directly chargeable to defendants city and Brzeczek under state
law by respondeat superior. Complaint ¶ 34. Finally, count
seven alleges that defendants city, Brzeczek and Nolan
negligently hired, retained and entrusted named defendant
police officers. Complaint ¶ 36.
For each of these acts, plaintiff asks for compensatory and
punitive damages, costs and attorney's fees.
1. Motions to Dismiss Defendants Nolan and Brzeczek
Two motions to dismiss defendant Nolan have been presented.
One of these motions attacks the allegations in count three
that defendant Nolan was responsible for and improperly hired,
trained, and disciplined the named police officers,
particularly defendant Hardesty. The other motion attacks the
allegation in count seven that defendant Nolan negligently
hired, retained and entrusted the named police officers.
Defendant Nolan has responded to these allegations by affidavit
attached to the motions to dismiss. The affidavit states that
the OPS is responsible only for investigating allegation of
excessive force committed by department personnel and that at
no time was defendant Nolan directly or indirectly responsible
for screening, hiring, training, controlling, supervising,
disciplining, assigning and/or transferring police officers.
In light of defendant Nolan's affidavit we construe his
motions as ones for summary judgment. See Fed.R.Civ.P. 7(a),
12(b). On a motion for summary judgment, the moving party is
entitled to judgment only if the pleadings and materials
outside the pleadings (in this case the affidavit) show that
there is no genuine issue as to any material fact. See
Defendant Nolan's affidavit does not refute plaintiff's
assertion that Nolan is liable for, in particular, a failure to
properly discipline Chicago police officers. In his affidavit,
Nolan states that the OPS investigates allegations of the use
of excessive force by police officers. In his Memorandum in
Support of the Motion to Dismiss, he states that at the
conclusion of the OPS investigations, recommendations are made
to the office of the Superintendent of Police. It is reasonable
to infer that if police
officers are at least in part disciplined or exonerated because
of OPS recommendations, then the investigations defendant Nolan
conducts which lead to the recommendations have some bearing on
disciplinary practices. In other words, as director of the OPS,
defendant Nolan may be responsible for the failure to properly
discipline Chicago police officers. This is a question of fact
which can not be resolved in a summary manner. Since it is not
shown that there is no genuine issue as to Nolan's
responsibilities as director of the OPS, defendant Nolan's
motion to dismiss counts three and seven are denied.
Defendant Brzeczek has filed a motion to dismiss count six.
Count six is a pendant state claim based on the traditional
tort theory of respondeat superior. Pendant claims are resolved
in accordance with applicable state law. Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Illinois law is controlling in this case.
Under Illinois law, the liability of a public employee*fn1
is governed by the Illinois Local Government and Governmental
Employee Tort Immunity Act. Ill.Rev.Stat. ch. 85, § 2-204
(1979). The act provides:
Except as other wise provided by statute, a public
employee, as such and acting within the scope of
his employment is not liable for an injury caused
by the act or omission of another person.
Plaintiff's allegation in count six explicitly states that
Brzeczek was acting within the scope of his employment at all
times material to the complaint. Under the statute, therefore,
he cannot be liable for defendant Hardesty's actions. See Means
v. City of Chicago, 535 F. Supp. 455 (N.D.Ill. 1982). Therefore,
defendant Brzeczek's motion to dismiss count six is granted.
2. Motion to Dismiss Defendant City of Chicago from Count
In count two, plaintiff alleges that defendant city conspired
with the other named defendants to violate plaintiff's rights
as guaranteed by the Constitution and 42 U.S.C. § 1981, 1983
and 1985(2) and (3) by exonerating defendant Hardesty
subsequent to the alleged cover up of the unjustifiable
shooting. The city asserts that it cannot be held liable under
this count as it rests upon the theory of respondeat superior.