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March 16, 1983


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiff Robert Mui ("Mui") has sued Robert H. Dietz, David Kapus, and the City of Chicago under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and several pendent state law causes of action. Jurisdiction is asserted pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a).*fn1 Presently before the Court is defendants' motion to dismiss Counts II, III, IV, V, and VI of Mui's complaint. For reasons set forth below, defendants' motion is granted in part and denied in part.

For purposes of a motion to dismiss, we must take the allegations in Mui's complaint as true and view them, as well as any reasonable inferences to be drawn from them, in the light most favorable to the plaintiff. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). Mui alleges that he leased an apartment to Catherine Alopogianie, a Chicago police officer. On September 30, 1980, Alopogianie began to move out of her apartment without notifying Mui. In an effort to learn why the outside doors were open, Mui approached the building where defendants Dietz and Kapus, Chicago police officers, were present. At this time, Dietz and Kapus made derogatory remarks to plaintiff concerning his Chinese ancestry. They also proceeded to physically restrain and handcuff Mui, place a gun to his back, break his finger, and place him under arrest for battery, resisting arrest, and disorderly conduct. Mui was not informed of his Miranda rights nor of the charges for which he was being arrested. He was subsequently taken into custody and was prosecuted on the aforementioned criminal charges, for which he was eventually acquitted. Mui now alleges that he was falsely charged in an effort to aid Alopogianie and to conceal the unlawful conduct of Dietz and Kapus.

Defendants Dietz and Kapus have answered Count I of Mui's complaint; the City of Chicago has moved to dismiss Count II, asserting that plaintiff has failed to assert a claim against it under 42 U.S.C. § 1983. All three defendants have moved to dismiss Count III, claiming that it fails to state a claim under 42 U.S.C. § 1981; and finally, defendants argue that Counts IV, V, and VI, which involve pendent state law claims, should be dismissed because Mui served notice pursuant to Ill.Rev.Stat. ch. 85 § 8-102 upon the wrong entity. In considering these arguments, we are mindful of the fact that an action may be dismissed for failure to state a claim only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Jafree v. Barber, 689 F.2d 640, 642-43 (7th Cir. 1982); Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir. 1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979).

Count II

We turn first to Count II, Mui's § 1983 claim against the City of Chicago.*fn2 It is settled that local government entities are "persons" subject to liability under the Civil Rights Act of 1871, 42 U.S.C. § 1983, when a plaintiff can causally link the constitutional deprivation he or she suffered to a governmental "policy" or "custom." 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). However, there is some variation in this district concerning the specificity of pleading required in § 1983 suits against local government entities. Compare Villa v. Franzen, 511 F. Supp. 231, 235 (N.D.Ill. 1981) with Spriggs v. City of Chicago, 523 F. Supp. 138, 144-45 (N.D.Ill. 1981) and Rivera v. Farrell, 538 F. Supp. 291, 296 (N.D.Ill. 1982). According to the United States Court of Appeals for the Seventh Circuit, "[t]he allegation of a single incident of unconstitutional conduct by a municipal employee usually does not establish a sufficient basis for suing the municipality." Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981). Thus, when a plaintiff sues a municipal government entity and alleges passive acquiescence in a pattern of unconstitutional conduct, a complaint which merely asserts that the plaintiff was injured as a result of an unspecified "policy" or "custom" of a governmental entity is insufficient to state a cause of action. Rivera v. Farrell, 538 F. Supp. 291, 297 (N.D.Ill. 1982). Also, a single incident of unconstitutional conduct, allegedly perpetrated to a policy or custom of a government entity, is inadequate to state a cause of action under § 1983. Gomez v. City of West Chicago, 506 F. Supp. 1241, 1245 (N.D.Ill. 1981). Rather, a plaintiff must plead, in addition to a specific incident of misconduct and a governmental policy or custom of perpetrating such wrongs upon persons, the existence of other, similar incidents. Hamrick v. Lewis, 515 F. Supp. 983, 986 (N.D.Ill. 1981). While it is not necessary to plead the specific details of the similar incidents of misconduct, such similar instances involving either the plaintiff or other similarly situated persons must be pled. Rivera v. Farrell, 538 F. Supp. 291, 294, n. 8 (N.D.Ill. 1982).

An examination of the pertinent portions of Mui's complaint*fn3 indicates that the aforementioned pleading requirements have not been met. While Mui has pled a specific instance of police misconduct and a governmental policy or custom pursuant to which such wrong was perpetrated, allegations of other, similar incidents are lacking. As a result, the City of Chicago's motion to dismiss Count II is granted.*fn4

Count III

All defendants join in seeking the dismissal of Count III, which is based upon 42 U.S.C. § 1981.*fn5 Dietz and Kapus argue that 42 U.S.C. § 1981 applies only to contractual matters; the City of Chicago adds that municipalities cannot be held liable on a respondeat superior basis under § 1981 for the racially discriminatory conduct of their employees. Moreover, according to the City, Mui has failed to properly plead a § 1981 claim by not alleging that the defendants' wrongful conduct was authorized and within the scope of their employment with the City. Defendants with no new authority or argument now urge this Court overrule Haugabrook v. City of Chicago, 545 F. Supp. 276 (N.D.Ill. 1982), where we held that municipalities may be held vicariously liable for the official acts of its employees. Id. at 281. It should come as no surprise to defendants that we decline to do so. Rather, we reiterate our carefully articulated view in Haugabrook that municipalities may indeed be held vicariously liable for the official acts of their employees under 42 U.S.C. § 1981.

An examination of Mui's complaint indicates that it sufficiently states a claim under § 1981:

    29. That the unlawful arrest, excessive use of
  force, unlawful detention and false charges of
  battery, resisting arrest and disorderly conduct
  perpetrated against the Plaintiff were motivated by
  racial prejudice of the Defendants, and each of them.
    30. That the acts of the Defendant Officers, ROBERT
  H. DIETZ and DAVID KAPUS, under color of law and
  under color of authority as police officers of the
  Defendant, CITY OF CHICAGO, ILLINOIS, hereinbefore
  described, denied Plaintiff the full and equal
  benefit of laws and proceedings for the security of
  persons that is enjoyed by white citizens, and
  deprived Plaintiff of the rights, privileges and
  immunities guaranteed to Plaintiff as a citizen and
  resident of the United States and constitute an
  unlawful arrest, excessive use of force, deprivation
  of liberty without due process of law and cruel and
  unusual punishment, all in violation of the Fourth,
  Eighth and Fourteenth Amendments to the Constitution
  and 42 U.S.C. § 1981.

Haugabrook v. City of Chicago, 545 F. Supp. 276, 279 (N.D.Ill. 1982). Accordingly, defendants' motion to ...

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