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PADILLA v. D'AVIS

February 1, 1984

GLORIA PADILLA, PLAINTIFF,
v.
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.

Facts*fn3

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 Padilla.

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 ...


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