on Miller's behalf. No allegations in the complaint remotely
involve Miller as a police officer. His only complicity
concerns "agreeing" to the filing of a charge.
A private party, however, may be liable under § 1983, where
they have jointly engaged with public officials in the denial
of civil rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90
S.Ct. 1598, 26 L.Ed.2d 142 (1970); Tarkowski v. Bartlett Realty
Co., et al., 644 F.2d 1204, 1206 (7th Cir. 1980). A conspiracy
exists when plaintiff alleges facts sufficient to show that
"there was an agreement between the parties to inflict a wrong
or injury upon another and an overt act that results in
damages." Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir.
1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct.
1987, 64 L.Ed.2d 670 (1980). Plaintiff's sole attempt to
establish a nexus between Miller and Schneider is the
allegation that the parties "implicitly or explicitly" agreed
to file the charge. Mere allegations that the parties acted in
concert, however, without any of the necessary factual
averments, is insufficient to defeat a motion to dismiss.
Tarkowski v. Bartlett Realty Co., supra, at 1206. McCabe v.
City of Chicago, No. 81 C 5108 (N.D.Ill. 3/2/82). "Plaintiffs
must allege with some particularity that the public defendant,
acting in his official capacity, conspired with the private
defendants to deny plaintiffs their rights; vague or conclusory
allegations of official participation are not sufficient to
withstand a motion to dismiss." Weiss v. Willow Tree Civic
Ass'n., 467 F. Supp. 803, 811 (S.D.N.Y. 1979) (emphasis added).
Accordingly, since the allegations in the complaint are
insufficient to support a claim that Miller acted under color
of law or conspired with state officials, the motion to dismiss
Count III as to Miller is granted. In the event that discovery
should provide some particularized basis for a claim against
Miller, plaintiff will have ample opportunity to seek his
rejoinder as a defendant.
With regard to Schneider, the inquiry becomes more
complicated. Both strands of the test for stating a claim
under § 1983 — state action and deprivation of a federal right
— pose close questions not yet addressed in this circuit.
Ultimately, we conclude that although Schneider may have been
acting under color of law when he signed the complaint, that
act did not deprive Koch of a right secured by the Constitution
or laws of the United States.
"[A]cts committed by a police officer even while on duty and
in uniform are not under color of state law unless they are in
some way `related to the performance of police duties.'"
Brisco v. LaHue, supra, at 721 n. 4, quoting Johnson v.
Hackett, 284 F. Supp. 933, 937 (E.D.Pa. 1968). Undoubtedly,
private citizens and, indeed, individuals employed as police
officers, may sign complaints without there being any indicia
of state action. See Norton v. Liddel, supra, at 1379 (10th
Cir. 1980). In the circumstances presented here, however, we
believe the complaint sufficiently indicates that Schneider
acted in his official capacity. The full performance of an
officer's investigative responsibilities includes, either by
regulation or custom, a duty to swear out complaints based on
that investigation. Cf. Briscoe v. LaHue, supra, at 721 n. 4.
Of course, state action is necessary but not sufficient to
satisfy the threshold requirements in a § 1983 suit. The Act
"imposes liability for violations of rights protected by the
Constitution, not for violations of duties of care arising out
of tort law." Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct.
2689, 2695, 61 L.Ed.2d 433 (1979). Thus, the question becomes
whether malicious prosecution contravenes the Fourteenth
Amendment's guarantee against deprivation of life, liberty or
property without due process of law.
The Seventh Circuit has not directly considered whether
malicious prosecution states a claim under the Civil Rights
Act, and district courts within the circuit are split.
Compare Brainerd v. Potratz, 421 F. Supp. 836, 840 (N.D.Ill.
1976) (malicious prosecution is not a violation of a
constitutional right), with Spears v. Conlisk, 440 F. Supp. 490,
498 (N.D.Ill. 1977) (false accusation of battery actionable
under § 1983).
It can be argued, however, that this Court of Appeals in the
past supported, sub silencio, the maintenance of § 1983 action
based on the tort of malicious prosecution. See Terket v. Lund,
623 F.2d 29 (7th Cir. 1980); Hampton v. Hanrahan, supra, at
630; Banish v. Locks, 414 F.2d 638 (7th Cir. 1969).*fn1
Nonetheless, recent decisions by the Supreme Court and this
circuit cast doubt on whether traditional common law torts for
which there are obvious and adequate state court remedies are
cognizable under the Civil Rights Act. For example, in Parratt
v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),
the Supreme Court held that a state actor's mere negligent
deprivation of property is not unconstitutional when the victim
can be made whole in a post-deprivation state court proceeding.
While Parratt, by its terms, dealt only with loss of property,
the Seventh Circuit, in Ellis v. Hamilton, 669 F.2d 510, 515
(1982), seems to have somewhat expanded the scope of that
decision. In Ellis the court considered the authority of
welfare and judicial officers to institute proceedings to
remove the plaintiff's grandchildren from her home and allow
them to be adopted by strangers. The Court found no violation
under § 1983 because state law provided a variety of remedies
to correct and promptly remedy any deprivation of liberty that
might occur. Together these cases support a notion that in
certain circumstances no denial of the due process required by
the Fourteenth Amendment occurs if the state provides
reasonable and adequate remedies. Cf. Johnson v. Miller, et
al., 680 F.2d 39 (7th Cir. 1982).
Without deciding the parameters of Parratt v. Taylor, and its
appropriateness for situations besides deprivations of
property, see McCowen v. City of Evanston, 534 F. Supp. 243
(N.D.Ill. 1982), we think the concerns expressed there are
applicable here. In the case at bar the allegedly malicious
prosecution does not implicate liberty interests since there is
no indication that plaintiff was kept in jail during trial, and
any injury to his reputation that results from the prosecution
is not considered a protectable liberty interest. See Paul v.
Davis, supra. No other "extra factor" such as litigiousness,
that may elevate the tort to the level of a constitutional
violation, is alleged in the complaint. See Beker Phosphate
Corp. v. Muirhead, 581 F.2d 1187, 1189 (5th Cir. 1978). In sum,
any injury suffered by plaintiff's facing prosecution is fully
compensable in a state court proceeding based on the common law
tort. The Fifth Circuit has consistently held, for these
reasons, that no cause of action is stated under § 1983 by an
allegation of malicious prosecution:
Neither the Fourteenth Amendment nor the Civil
Rights Act purported to secure a person against
unfounded or even malicious claims or suits in
state courts, especially when the laws and courts
of the state are available and furnished adequate
remedies to a person aggrieved. Curry v. Ragan,
257 F.2d 449, 450 (5th Cir.), cert. denied,
358 U.S. 851, 79 S.Ct. 78, 3 L.Ed.2d 85 (1958).
Accord, Cook v. Houston Post, 616 F.2d 791 (5th Cir. 1980),
Paskaly v. Seale, 506 F.2d 1209 (9th Cir. 1974), Brainerd v.
In light of the increasing recognition that it may be
appropriate to consider "the adequacy and availability (not
exhaustion) of remedies under state law before concluding that
a deprivation of life, liberty or property
violates due process of law," Ellis v. Hamilton, supra, at 515,
we believe that were the Seventh Circuit to be faced directly
with the question it would concur with the sentiments expressed
by the Fifth Circuit. "To hold otherwise would make the
Fourteenth Amendment `a font of tort law to be superimposed
upon whatever systems may already be administered by the
states.'" Brainerd v. Potratz, supra, at 840, quoting Paul v.
Davis, supra, at 701, 96 S.Ct. at 1160. Accordingly, the common
law tort of misuse of legal procedure, without more, does not
give rise to the level of a constitutional wrong to be remedied
by § 1983, Beker Phosphate Corp. v. Muirhead, supra, at 1189,
and Count III is therefore dismissed.*fn2
II. Village's Motion to Dismiss Count V
Plaintiff alleges in Count V that the Village of Justice
approved or ratified the unlawful conduct of Miller and
Schneider. The Village moves for dismissal on two
grounds:*fn3 first, that plaintiff fails to set forth with
sufficient specificity the existence of a policy or custom as
required under 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), and second, that allegations of a public entity's
constructive knowledge of prior instances of unconstitutional
conduct are insufficient to give rise to liability.
In Monell the Supreme Court held that in certain
circumstances municipalities and other governmental units can
be sued directly under § 1983 for monetary relief. A
municipality, however, "cannot be held liable solely because it
employs a tort-feasor, or in other words, a municipality cannot
be held liable under § 1983 on a respondeat superior theory."
Monell, supra, at 691, 98 S.Ct. at 2036. Rather, a municipality
can be sued directly under the Civil Rights laws only when the
alleged constitutional violation stemmed from a "policy
statement, ordinance, regulation or decision officially adopted
or promulgated by that body's officers." Id. at 690, 98 S.Ct.
In the circumstances presented here, where the existence of
a policy must be inferred from the actions of the parties,
plaintiff must allege sufficient facts demonstrating that the
officer's conduct was part of a pattern of activity amounting
to a governmental custom or practice, rather than simply the
product of an individual officer's tortious conduct. A single
incident, by itself, normally cannot evidence a governmental
policy or custom. Powe v. City of Chicago, 664 F.2d 639 (7th
Cir. 1981); Cattan v. City of New York, 523 F. Supp. 598
(S.D.N.Y. 1981); Gomez v. City of West Chicago, 506 F. Supp. 1241,
1245 (N.D.Ill. 1981); Hamrick v. Lewis, 515 F. Supp. 983,
985 (N.D.Ill. 1980); Magayanes v. City of Chicago, 496 F. Supp. 812,
814 (N.D.Ill. 1980).
Plaintiff maintains that the complaint meets the requisite
standard by the following allegations:
35. The police officers of the [Village] made a
constant and repeated practice of physically
abusing prisoners. . . .
36. The [Village] knew or should have known of
the above stated conduct of the police
officers, yet . . . with deliberate
indifference and gross negligence failed to
provide proper training to its police
officers and take disciplinary steps. . . .
37. The [Village] impliedly or tacitly
authorized, approved or encouraged the above
stated conduct of its officers.
There appears to be substantial disagreement in this
district with regard to the specificity of pleading required
in a suit against a municipality under § 1983. See Giarrusso v.
City of Chicago, 539 F. Supp. 690, 693
(N.D.Ill. 1982), Rivera, et al. v. Farrel, et al., 538 F. Supp. 291
(N.D.Ill. 1982), and cases cited therein. The various
approaches taken by my colleagues "evidence the court's efforts
to draw a principled line between the admittedly general
standards of federal notice pleading [Rule 8(a)] and the
principle that a pleading is insufficient if it merely alleges
the conclusions of the pleader without any factual support."
Rivera, et al. v. Farrell, et al., supra, at 294.
After consideration of the differing viewpoints, this court
concurs with the sentiments of Judge Marshall, most recently
expressed in Means v. City of Chicago, et al.,