United States District Court, Northern District of Illinois, E.D
February 1, 1984
GLORIA PADILLA, PLAINTIFF,
LUIS M. D'AVIS AND CITY OF CHICAGO, DEFENDANTS. ANITA JONES, PLAINTIFF, V. LUIS M. D'AVIS AND CITY OF CHICAGO, DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Gloria Padilla ("Padilla") and Anita Jones ("Jones") have
separately sued Dr. Luis M. d'Avis and the City of Chicago
("City") under 42 U.S.C. § 1983 ("Section 1983") for damages
arising from Dr. d'Avis' alleged sexual assaults during the
course of his gynecological examinations of Padilla and Jones
at a City Department of Health facility. Each plaintiff's
Complaint also asserts pendent state law tort claims against
both Dr. d'Avis and City.
Jones is before this Court on a motion to reconsider Judge
Perry's previous dismissal of her case.*fn1 In Padilla's
case, both Dr. d'Avis and City have moved to dismiss the
Complaint under Fed.R.Civ.P. ("Rule") 12(b)(6) for failure to
state a claim for relief. For the reasons stated in this
memorandum opinion and order:
1. Jones's motion to reconsider is
granted.*fn2 This Court reinstates her Section
1983 claim against City and dismisses her state
law claims against Dr. d'Avis without prejudice.
2. As for Padilla's case:
(a) Dr. d'Avis' motion to dismiss Padilla's
claims against him is granted.
(b) City's motion to dismiss is denied as to
the Section 1983 claim and granted as to the
state law claim.
On June 11, 1981 Jones went to a City Department of Health
facility located in Chicago for a gynecological examination.
During the course of that examination Dr. d'Avis, an employee
of the facility, sexually assaulted Jones, depriving her of
constitutionally protected liberty and property interests.
Padilla lodges the same charge against Dr. d'Avis arising out
of a March 1, 1982 gynecological examination.
City has failed (1) adequately to train, instruct, supervise
and discipline physicians, (2) to require another female's
presence during the exam to prevent such assaults and (3)
adequately to investigate patient complaints of misconduct
(Jones Amended Complaint ¶¶ 11, 12; Padilla Complaint ¶¶ 11,
13). Such failures caused Dr. d'Avis to assault Jones and
In addition to their Section 1983 claims both plaintiffs
assert (at least) the following state law torts:
1. against Dr. d'Avis: assault, infliction of
emotional distress and negligence; and
2. against City: by its earlier-described
"willful and wanton" failures, violation of its
duty to hire competent physicians and discipline
them for misconduct.
Finally, both plaintiffs lodged complaints against Dr. d'Avis
with agents of City. Though City conducted an investigation,
it was neither fair nor thorough (though just how that
delinquency damaged plaintiffs is unidentified).
Each plaintiff seeks $1 million in compensatory damages and
$5 million in punitive damages. Those prayers were attached to
the Section 1983 claims and state law claims alike.*fn4
Section 1983 Claims
1. City's Motion
Absent some formally promulgated standard of conduct (such
as an ordinance or administrative regulation), a Section 1983
cause of action against a municipality must be grounded on
some direct municipal act or omission or some municipal
policy, custom or practice that in either event proximately
caused the employee tort-feasor to inflict the harm on the
plaintiff. Monell v. Department of Social Services of the City
of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d
611 (1978); Means v. City of Chicago, 535 F. Supp. 455, 458
(N.D.Ill. 1982). Here Padilla and Jones have alleged City's
failures to train, instruct, supervise, investigate and
discipline resulted in Dr. d'Avis' sexual assault on both
City makes two arguments against the adequacy of those
allegations under Monell:
1. No reasonable inference of causation can be
drawn from City's alleged failures.
2. Under Bowers v. DeVito, 686 F.2d 616, 618 (7th
Cir. 1982) Dr. d'Avis' actions were not state
action, so that plaintiffs
were not deprived of a constitutionally protected
Both those arguments fail.
There is a difference of opinion within this District Court
as to the pleading specificity required under Monell,
(contrast, e.g., Mui v. Dietz, 559 F. Supp. 485, 487-88
(N.D.Ill. 1983) with, e.g., Means). Since well before Means
(see, e.g., Thompson v. Evergreen Park, 503 F. Supp. 251
(N.D.Ill. 1980)) this Court has held the notice pleading
concepts exemplified in Rule 8 establish a low threshold for a
complaint's allegations as to the municipality's act, omission,
policy, custom or practice (and the same principle necessarily
applies as to the causal nexus between the municipality's
conduct and plaintiff's injury). As Means, 535 F. Supp. at 459
and Thompson, 503 F. Supp. at 252 point out, whether the
municipality's asserted misconduct exists and whether it in
fact caused the individual's behavior (which in turn injured
plaintiffs) are matters of proof, not pleading. If plaintiffs
can adduce proof of City's earlier-described failures, one or
more of those lapses could be a proximate cause of Dr. d'Avis'
misconduct.*fn5 See Lenard v. Argento, 699 F.2d 874, 885-86
(7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 69, 78
L.Ed.2d 84 (1983); Villa v. Franzen, 511 F. Supp. 231, 235
(N.D.Ill. 1981). Both those questions of fact cannot be
resolved at this initial pleading stage.
City's second argument wholly misperceives Monell and kindred
cases. City's liability is not dependent on whether the
employee-tortfeasor can be characterized as engaging in "state
action." Rather, for purposes of City's direct liability, its
own alleged action or inaction — whether via ordinance or
regulation, via failure to take adequate and necessary steps or
(as in Monell) via policy or custom — is itself the requisite
"state action." City's reliance on Bowers is misplaced.
There a released mental patient had killed Bowers' decedent,
and the Court of Appeals rejected an attempt to subject the
State to Section 1983 liability. Under those circumstances
Bowers, 686 F.2d at 618 said the State has no constitutional
duty to protect a member of the public from a person over whom
the State has no control. Dr. d'Avis cannot be likened to the
released mental patient in Bowers. At least on the pleadings he
is a City employee, as to whom City's control relationship —
and hence City's duty owed to those with whom he deals in the
course of his duties — is much different.
This is not of course to say that the right to control a
municipal employee of itself carries with it Section 1983
liability. That would flout Monell. It is rather that such
right to control, when it is implemented by the kinds of
failures of supervision (and other failures) alleged in the
complaint, can provide the necessary causal nexus and duty for
municipal liability. By way of sharp contrast, the state
defendants obviously had no comparable control over the freed
mental patient in Bowers.
Thus plaintiffs have adequately alleged a Section 1983 cause
of action against City. City must remain in each case to that
2. Dr. d'Avis' Motion
To state a Section 1983 cause of action against Dr. d'Avis,
plaintiffs must allege
(1) deprivation of a right secured by the United States
Constitution or laws (2) by Dr. d'Avis' action "under color"
of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,
155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Dr. d'Avis
argues he is not amenable to suit under Section 1983 because he
was not acting under color of state law.
Plaintiffs assert deprivation of a liberty or property
interest protected by the Due Process Clause. Clearly an
intentional tort such as assault implicates a protectible
liberty interest. See Mary Beth G. and Sharon N. v. City of
Chicago, 723 F.2d 1263 at 1270-1271 (7th Cir. 1983). But under
the Fourteenth Amendment such an interest is protected against
deprivation only by state government, Flagg Brothers, 436 U.S.
at 156, 98 S.Ct. at 1733. What must be decided then is whether
Dr. d'Avis can be characterized as a governmental actor so as
to render him personally liable in constitutional —
Fourteenth Amendment — terms. To phrase the inquiry in its
most familiar way, was Dr. d'Avis engaged in "state
As the Supreme Court has recently made clear, "state action"
and "under color" of state law are not necessarily the same
concept when an individual is acting. Lugar v. Edmondson Oil
Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 2753 n. 18, 73
L.Ed.2d 482 (1982); Flagg Brothers, 436 U.S. at 156-57, 98
S.Ct. at 1733-34. Lugar teaches all state action is action
under color of state law, but all action under color of state
law is not necessarily state action. Here plaintiffs have
alleged Dr. d'Avis' actions were "caused" (obviously not in the
volitional sense, but in the proximate-cause sense) by City's
already-discussed delinquencies. Assuming that allegation
satisfies Section 1983's under-color-of-state-law requirement,
the allegation is not necessarily enough to show Dr. d'Avis'
assault was state action.
In Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445,
453, 70 L.Ed.2d 509 (1982) the Court held state employment
alone was not enough to show a public defender exercising
independent professional judgment was acting under color of
state law, absent an allegation he acted pursuant to a state
rule that required the conduct. See Blum v. Yaretsky,
457 U.S. 991, 1009, 102 S.Ct. 2777, 2788, 73 L.Ed.2d 534 (1982). If in
Polk County the public defender was not acting under color of
law, by definition he was not engaged in state action. See
Blum, 457 U.S. at 1009, 102 S.Ct. at 2788.
Here Dr. d'Avis is a professional like the public defender
in Polk County. It must be assumed for current purposes his
conduct (the pattern of sexual assaults) was facilitated by
City's delinquencies. But the "state action" question is a
different one: whether the misconduct can fairly be attributed
to the State. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102
S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982).
Although the distinction is not always easy to articulate,
it is instructive to view it in terms of contrasting
illustrations. In the classic case of the sheriff beating the
prisoner for racial reasons (Screws v. United States,
325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944)), no one contends he is
doing the State's bidding. But what he is doing is carrying out
in a constitutionally impermissible way the very function the
State has assigned to him. We have both action "under color" of
state law and "state action" — the State acting through its
agent. By contrast, the private party enforcing a
warehouseman's lien (Flagg Brothers) is also enabled to do so
only by virtue of a state statute. Hence the action may be
deemed "under color" of state law. But the activity itself,
whether carried out rightly or wrongly, serves the ends not of
the government but of the private actor. It is not "state
How does Dr. d'Avis fare in those terms? To be sure he was
hired and placed in the City Department of Health facility by
City, and City (on the complaints' allegations) failed to do
the things required to avoid known or obvious risks of the
misconduct he perpetrated. In that sense, he was enabled to do
the complained-of acts "under color" of law. But the services
he rendered, properly or improperly, were extended to and for
the patients and not City. Padilla argues because Department of
Health doctors compile disease statistics and report epidemics
to their superiors, they serve a state function, just as the
doctors held liable in O'Connor v. Donaldson, 422 U.S. 563, 95
S.Ct. 2486, 45 L.Ed.2d 396 (1975) and Estelle v. Gamble,
429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) were found to be
fulfilling an institutional (hence a state action) function.
However, as Polk County, 454 U.S. at 320, 102 S.Ct. at 450
noted, those doctors were sued in their capacity as custodians
and supervisors — for carrying out (more accurately, for
delinquency in carrying out) their institutional, not their
private-patient professional, functions. No hint of any such
supervisory or other institutional function is involved here as
to Dr. d'Avis. Moreover the Court's focus in Rendell-Baker and
Blum is much narrower: not whether in some sense Dr. d'Avis may
generally contribute to Department of Health goals in his
duties as a physician, but rather whether his actions as to
Padilla and Jones (the gynecological examinations, whether done
properly or involving the improper sexual assaults) fulfilled a
All this may be somewhat redolent of Justice Stewart's famed
means of identifying obscenity.*fn7 In a sense the
distinction is somewhat like that, encountered in other legal
contexts, between the governmental and proprietary activities
in which government may engage. But however the matter is
viewed, the end result is a conclusion Dr. d'Avis was not
engaged in "state action" when he examined, and in the course
of those examinations assaulted, Padilla and Jones.
This determination is not inconsistent with the earlier
holding plaintiffs have stated a Section 1983 cause of action
against City. As stated earlier, the "state action" as to City
is its very own conduct (in the form of the alleged failures
that were the alleged proximate cause for Dr. d'Avis' conduct
in the tort sense). For Dr. d'Avis to bear Section 1983
liability, his conduct must have been state action in the
constitutional sense. Those two inquiries are distinct, and
plaintiffs have not provided an affirmative answer to the
Pendent State Claims
There remain for consideration plaintiffs' pendent state law
claims against City and Dr. d'Avis. Even though this opinion's
Section 1983 rulings make the latter inquiry the easier and
shorter one, in the interests of symmetry City will be dealt
1. City's Motion
City makes two arguments that it says bar the state law
claims against it:
1. Padilla failed to allege or provide the
written notice to City required by the Illinois
Tort Immunity Act, Ill.Rev.Stat. ch. 85, §§ 8-102
and 8-103 ("Sections 8-102 and 8-103").
2. Both plaintiffs failed adequately to allege
Dr. d'Avis was acting in furtherance of the
employer City's business.
1. City had actual notice of the incident
because it conducted an investigation into the
incident. In addition her Complaint gives the
same information the notice requires.
2. Complaint ¶ 7 is sufficient, for it alleges
Dr. d'Avis was working in his "official capacity"
as a Department of Health physician.
City has the better of it on both grounds.
As for the required notice, Sections 8-102 and 8-103
§ 8-102. Within 1 year from the date that the
injury or cause of action, referred to in Sections
8-101, 8-102 and 8-103, was received or accrued,
any person who is about to commence any civil
action for damages on account of such injury
against a local public entity, or against any of
its employees whose act or omission committed while
acting in the scope of his employment as such
employee caused the injury, must serve, either by
personal service or by registered or certified
mail, return receipt requested, a written notice on
the Secretary or Clerk, as the case may be, for the
entity against whom or against whose employee the
action is contemplated [consisting of (?)] a
written statement, signed by himself, his agent or
attorney, giving in substance the following
information: the name of the person to whom the
cause of action has accrued, the name and residence
of the person injured, the date and about the hour
of the accident, the place or location where the
accident occurred, the general nature of the
accident, the name and address of the attending
physician, if any, and the name and address of the
treating hospital or hospitals, if any. § 8-103. If
the notice under Section 8-102 is not served as
provided therein, any such civil action commenced
against a local public entity, or against any of
its employees whose act or omission committed while
acting in the scope of his employment as such
employee caused the injury, shall be dismissed and
the person to whom such cause of injury accrued
shall be forever barred from further suing.
Illinois Supreme Court decisions have added a gloss to the
statute, permitting either the written notice (as is literally
required) or the lawsuit asserting the claim to be filed
within the one-year time period. Dunbar v. Reiser, 64 Ill.2d 230,
237, 1 Ill.Dec. 89, 91-92, 356 N.E.2d 89, 91-92 (1976).
See also Zavala v. City of Chicago, 66 Ill.2d 573, 578-79, 6
Ill.Dec. 901, 902-03, 363 N.E.2d 848, 849-50 (1977). In both
those cases the Court reasoned what is required is not simply
notice of the injury but notice of the prospective plaintiff's
intention to commence a suit for damages. Dunbar, 64 Ill.2d at
235, 1 Ill.Dec. 91, 356 N.E.2d at 91.
Padilla's claim of City's actual knowledge of the injury
does not meet the statutory requisite, nor was her Complaint
filed within one year of the injury so as to satisfy
Dunbar's rationale or holding.*fn8 Padilla's state law claims
against City are therefore subject to dismissal as
As for the issue of pleading sufficiency (common to both
plaintiffs' complaints), it poses a substantive question of
agency law: how Dr. d'Avis' actions are in furtherance of
City's business purpose so as to be chargeable to City. That
looks to Illinois law rather than to federal pleading concepts
(which would govern matters of procedure).
Hoover v. University of Chicago Hospitals, 51 Ill.App.3d 263,
266-67, 9 Ill.Dec. 414, 417-18, 366 N.E.2d 925, 928-29 (1st
Dist. 1977) upheld dismissal of a complaint for failure to
state a cause of action. There, as in these cases, plaintiff
alleged the doctor was acting in the course of his employment
when he sexually assaulted her during an examination at
University Hospitals. Nonetheless the Appellate Court said the
intentional sexual assault cannot be interpreted as an act in
furtherance of the hospital's business. Hoover, 51 Ill.App.3d
at 267, 9 Ill.Dec. at 418, 366 N.E.2d at 929.
Hoover is on all fours. Even with all factual inferences in
plaintiffs' favor, neither Complaint contains any allegations
that could show the sexual assault was "actuated at least in
part by a purpose to further the employer's business." Sunseri
v. Puccia, 97 Ill.App.3d 488, 493, 52 Ill.Dec. 716, 721,
422 N.E.2d 925, 930 (1st Dist. 1981).
That incurable disease is fatal to both plaintiffs' state law
claims against city.
2. Dr. d'Avis' Motion
Dr. d'Avis is out of this case on Section 1983 grounds. Any
state law claims against him would thus call for assertion of
pendent party jurisdiction. If not dead altogether, that
concept appears at best moribund in this Circuit. Graf v.
Elgin, Joliet and Eastern Railway Co., 697 F.2d 771, 775 (7th
Cir. 1983); Hixon v. Sherwin-Williams Co., 671 F.2d 1005,
1008-09 (7th Cir. 1982); Martin v. County of Kendall,
561 F. Supp. 726, 730 (N.D.Ill. 1983); see also last week's Supreme
Court reference to the continued vitality of Aldinger v.
Howard, 427 U.S. 1, 14-15, 96 S.Ct. 2413, 2420, 49 L.Ed.2d 276
(1976), in Pennhurst State School & Hospital v. Halderman, ___
U.S. ___, ___ n. 33, 104 S.Ct. 900, 920 n. 33, 79 L.Ed.2d 67
But even if pendent party jurisdiction were sometimes
maintainable, in the present posture of this case (now that
this Court has dismissed the state law claims against City)
retention of such claims against Dr. d'Avis would not serve
considerations of judicial economy. Hixon, 671 F.2d at 1007.
Accordingly plaintiffs' state law claims against Dr. d'Avis are
dismissed, without prejudice to their reassertion in state
Jones' motion for reconsideration is granted. Her Section
1983 claim against City is reinstated. Her state law claims
(1) against City are dismissed with prejudice and (2) against
Dr. d'Avis are dismissed without prejudice.
City's motion to dismiss Padilla's Section 1983 claim is
denied. Padilla's state law claims against City are dismissed
with prejudice. Dr. d'Avis' motion to dismiss Padilla's claims
is granted (1) with prejudice as to the Section 1983 claim and
(2) without prejudice as to her state law claims.
City is ordered to answer each plaintiff's Section 1983
claims. These actions are set for a further status report
March 9, 1984 at 9 a.m.