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October 19, 1983


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


This civil rights action is before the court on the motion of certain defendants under Rule 12(b)(6), Fed.R.Civ.P., to dismiss the complaint as against them. For the reasons stated below, the court grants this motion as to defendants Byrne, Brzeczek, Nolan, and Rosas, and denies the motion as to defendant City of Chicago. The court strikes the City of Chicago Department of Police from the complaint as a defendant. Defendants Ganison and Carter have answered the complaint, and they do not join in the motion to dismiss.

The thirteen counts of the complaint are allocated among the plaintiffs as follows. Each of the three plaintiffs sues under four theories — 42 U.S.C. § 1981, 1983 and 1985(3), and Illinois tort law — alleging each theory in a separate count. One additional omnibus count requests punitive damages for all three plaintiffs under all four theories. The complaint is less well organized with respect to the defendants. All eight defendants are named in all thirteen counts, and the complaint gives no indication that some claims might be asserted against fewer than all of the defendants.

For purposes of this motion to dismiss, the allegations of the complaint are taken as true. The gist of the complaint is that defendants Ganison and Carter, police officers, ordered plaintiff Trotter into their squad car without cause, beat him, released him, chased him to the apartment of plaintiff Ruby Thomas (Trotter's cousin), forced their way into the apartment, and inside the apartment beat Trotter and plaintiff George Thomas. Plaintiffs filed a charge against Ganison and Carter with the Police Department's Office of Professional Standards, but the Office concluded that there was insufficient evidence to warrant a finding that Ganison or Carter was guilty of any misconduct. Additional allegations attribute these occurrences to certain policies which the court will discuss below.

City of Chicago — § 1983

A municipality may be held liable under § 1983, but such liability may not be predicated on a theory of respondeat superior. A municipality may be held liable only for its own acts, keeping in mind that municipalities act through their agents. "[I]t is when execution of a government's policy or custom, whether made by its law-makers 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." Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Failure to act to remedy a pattern of unconstitutional behavior may amount to a de facto policy, and may form the basis for municipal liability. Lenard v. Argento, 699 F.2d 874, 886 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983).

Questions concerning de facto municipal policies often are considered in light of Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). That case is not directly on point on questions of municipal liability, since it dealt with claims against municipal officials. Nonetheless, Rizzo often is considered in discussions under Monell, because it addresses allegations of inactivity in the face of a pattern of civil rights violations, and such allegations commonly are asserted against municipalities.

Plaintiffs' complaint alleges that it is the custom and practice of the City, acting through certain of its agents, to deprive blacks and others of their civil rights in the manner in which plaintiffs' rights are alleged to have been violated. (¶ 18.) In the language of the complaint, the custom or practice is evidenced by:

a) Repeated and notorious incidents of a like kind;

b) Repeated suits of the nature of this suit;

  c) Repeated failure to exercise even reasonable care
     in the selection of persons to be police officers
     and supervisors;
  d) Repeated failure to train and educate police
  e) Repeated failure to cull out known offenders among
     police officers;
  f) Repeated failure to discipline offending police
  g) Repeated and deliberate failure to find wrongdoing
     and violations of civil rights on the part of
     police officers, even when such wrongdoing is as
     blatant as the facts herein or worse;
  h) Repeated instances on the part of all officials
     involved in such cases, either actively or
     passively, to cover-up and absolve such wrongdoing
     on the part of police officers.

(¶ 19.) Plaintiffs allege also that the City encourages misconduct by indemnifying police officers against civil rights judgments. (¶ 20.) Plaintiffs allege that the City's custom or practice "has created a persuasive [sic], familiar, and recognizable pattern of conduct on the part of many police officers . . . [and] has given rise directly to the constitutional deprivations of the plaintiffs herein." (¶ 22.)

The court has expressed its doubts that an official policy of indemnification causes police misconduct. Ekergren v. City of Chicago, 538 F. Supp. 770, 772-73 (N.D.Ill. 1982). On another occasion the court indicated some willingness to scrutinize the sufficiency of bare allegations of de facto municipal policy. Williams v. City of Chicago, 525 F. Supp. 85 (N.D.Ill. 1981). While some of plaintiffs' allegations were present also in Ekergren and Williams, plaintiffs' allegations, taken as a whole, are more similar to those present in Spriggs v. City of Chicago, 523 F. Supp. 138 (N.D.Ill. 1981). In that case the court considered allegations of municipal policy similar to those presented here, and the court held that they stated a claim under the principles found in Monell, Rizzo, and other precedents. The court concludes that plaintiffs have stated a claim against the City of Chicago under ยง 1983. They allege repeated ...

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