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BROWN v. CITY OF CHICAGO

October 19, 1983

SYLVESTER BROWN, PLAINTIFF,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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

  MEMORANDUM OPINION AND ORDER

This civil rights suit is before the court on defendants' motion to dismiss plaintiff's Amended Complaint. For the reasons stated below, the court grants defendants' motion in part and denies it in part.

The allegations of the Amended Complaint, which are taken as true for the purposes of this motion to dismiss, reveal the following facts among others. On or about January 1, 1980, plaintiff Sylvester Brown was at a CTA station. Defendants Peter Bukiri and J. Delanty, Chicago police officers, approached Brown. Fearing for his safety, Brown ran from the station. (Count I ¶ 3.) Bukiri and Delanty pursued Brown, caught him and arrested him. Bukiri and Delanty beat Brown, handcuffed his hands behind his back, and put him in the back of a paddy wagon. (Count I ¶ 4.) With his hands handcuffed behind his back, Brown could not maintain his balance as Bukiri and Delanty drove the paddy wagon, making stops and turns. (Count I ¶¶ 5, 6.) Bukiri and Delanty drove to a Chicago police station. Brown informed them that he was injured and could not move. (Count II ¶ 2.) Bukiri and Delanty pulled him by the legs from the paddy wagon, and Brown lost consciousness. (Count II ¶ 3.) As a result of his injuries, Brown now is a quadriplegic. (Count II ¶ 5.) Brown is confined to a wheelchair for life. (Count IV ¶ 8.) After the incident, Bukiri and Delanty conspired to file false charges of disorderly conduct against Brown, to help justify his arrest. (Count III ¶ 2.)

In Count I, Brown sues Bukiri, Delanty and the City of Chicago under 42 U.S.C. § 1981 and 1983, for violation of his civil rights occurring during his arrest and transportation in the paddy wagon. In Count II, Brown sues Bukiri, Delanty and the City under the same statutes for violation of his civil rights at the time he announced his injury and was removed from the paddy wagon. In Count III, Brown sues Bukiri, Delanty and the City under 42 U.S.C. § 1983 and 1985(3) for violation of his civil rights by the conspiracy to charge him with disorderly conduct. In Count IV, Brown sues Bukiri, Delanty and the City for negligence in his arrest and transportation in the paddy wagon.

COUNT I

The court grants defendants' motion to dismiss Count I only in part. First, the court grants defendants' motion insofar as Count I purports to proceed under 42 U.S.C. § 1981, since Brown alleges no discrimination based on race or on any classification even remotely analogous to race. See, e.g., Carillo v. Illinois Bell Telephone Co., 538 F. Supp. 793, 795-97 (N.D.Ill. 1982) (Getzendanner, J.). Second, the court also grants defendants' motion to the extent Brown may be proceeding against the City on a theory of respondent superior. Municipalities may not be held liable under § 1983 on the basis of respondeat superior. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Recognizing this general rule, Brown argues that the City's policy of indemnifying police officers against civil rights judgments amounts to some kind of ratification, making respondeat superior liability appropriate. The court rejects this approach. Rather than making the doctrine of respondent superior applicable, the alleged indemnification policy is an action of the City, to be considered in the court's Monell analysis, which is given below.

In other respects, the court holds that Count I states a claim sufficient to withstand dismissal on the pleadings. As to Bukiri and Delanty, Count I clearly alleges that they acted recklessly or intentionally in placing Brown in a vulnerable position inside the paddy wagon and then driving the wagon in a manner that would cause him to fall and be thrown about the back of the wagon. Further, the court holds that Count I states a claim against the City under the principles of Monell.

In Monell the Supreme Court held that municipalities may be held liable under § 1983, but only for their own acts. A municipality thus may not be held liable under the doctrine of respondeat superior, which makes an employer liable vicariously for all acts committed by its employees while acting "within the scope of their employment." Iskander v. Village of Park Forest, 690 F.2d 126, 130 (7th Cir. 1982). Municipalities, like other corporations do, however, act through their agents. While a municipality is not chargeable vicariously with everything its employees do while acting within the scope of their employment, it may be held directly liable for those acts which its agents actually perform on its behalf, in the fulfillment of their duties. As stated in Monell, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." 436 U.S. at 694, 98 S.Ct. at 2037.

A municipality may be held liable not only on the basis of officially promulgated policies, but also on the basis of de facto municipal policies, including those consisting of improper inaction in the face of repeated constitutional violations. Lenard v. Argento, 699 F.2d 874, 886 (7th Cir. 1983), petition for cert. filed, ___ U.S. ___, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983). Several district court opinions have devoted much attention to the proper manner for pleading such de facto policies, some requiring allegations of more than one incident, and others eschewing any such requirement if the existence of the policy is alleged. Compare, e.g., Hamrick v. Lewis, 515 F. Supp. 983, 985-86 (N.D.Ill. 1981) (Aspen, J.), with Means v. City of Chicago, 535 F. Supp. 455, 458-61 (N.D.Ill. 1982) (Marshall, J.). In the present case, however, it appears that Brown's most important allegations against the City relate to official acts or policies, rather than to de facto policies — i.e., Brown alleges actions taken in execution of City policies, and also acts "by those whose edicts or acts may fairly be said to represent official policy." 436 U.S. at 694, 98 S.Ct. at 2034.

One of Brown's allegations is that the City purchases and uses "paddy wagons which are inherently unsafe." (Count I ¶ 10.) This allegation must be considered as an allegation of an official action by the City. The City presumably conferred authority upon one or more of its agents to select a model of paddy wagon for purchase and use, and there is no contention that anyone exceeded the delegated authority or defied City policy in purchasing paddy wagons for use by the police department. In this respect Brown clearly alleges action by the City itself.

Another of Brown's allegations is that "the Defendant City of Chicago and its police department had in force and effect, as a matter of policy, the instruction of its police officers to handcuff citizens under arrest in such fashion that their arms were secured behind their backs." (Count I ¶ 9.) This paragraph too appears to allege official action by the City. The City and the police department presumably confer authority upon one or more agents to determine how police officers should be instructed to use handcuffs on arrestees. The decision to instruct police officers to handcuff arrestees' wrists behind their backs, the carrying out of that decision by instruction of police officers, and the further execution of that decision by a police officer's handcuffing an arrestee in the manner in which he is instructed, are acts of the City, acting through its agents. Even if no formal decision ever was made, widespread instruction in this method by those charged with instructing police officers, very likely would amount to an official or perhaps de facto City policy on which City liability could be based.

It should be noted that the official City acts or policies need not appear unconstitutional on their face, but at the same time it is not enough merely to identify acts or policies of the City. "Under Monell, the policy of the municipality is not to be examined, in a vacuum, for unconstitutionality. Rather, under Monell, the crucial question is whether the unconstitutional acts complained of were caused by a policy or custom of the municipality." Powe v. City of Chicago, 664 F.2d 639, 650 (7th Cir. 1981) (emphasis in original). Thus, the court has rejected a claim against the City based on an alleged policy of indemnifying police officers against civil rights judgments. Such a policy surely would be an official City policy, but the court held that the policy could not have caused the acts complained of. Ekergren v. City of Chicago, 538 F. Supp. 770, 772-73 (N.D.Ill. 1982) (Getzendanner, J.).

Brown's allegations must support the inference that the City's alleged acts caused his injury, and the court believes that Brown's allegations do support such an inference. Brown alleges:

    That as a result of the policies of purchase and
  use of paddy wagons which are inherently unsafe and
  the handcuffing of arrested citizens behind their
  back during transportation in said wagons, the
  defendant CITY OF CHICAGO and its police department
  ...

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