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EILAND v. HARDESTY

August 16, 1982

WOODROW EILAND, PLAINTIFF,
v.
RICHARD HARDESTY, # 14812, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CHICAGO POLICE OFFICER; CORRINE LUNT, # 8927, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A CHICAGO POLICE OFFICER; REGINALD BETTS, # 16545, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CHICAGO POLICE OFFICER; ROBERT MONTGOMERY, # 16785, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A CHICAGO POLICE OFFICER; CITY OF CHICAGO; RICHARD BRZECZEK, SUPERINTENDENT OF POLICE; FRANK NOLAN, DIRECTOR OF THE OFFICE OF PROFESSIONAL STANDARDS, DEFENDANTS.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

  MEMORANDUM OPINION

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).

FACTS

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 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 Fed.R.Civ.P. 56(c).

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 ...


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