United States District Court, Northern District of Illinois, E.D
May 16, 1984
WILLIAM M. MALONEY, PLAINTIFF,
HAROLD WASHINGTON, INDIVIDUALLY AND AS MAYOR OF THE CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
In the instant case, plaintiff alleges discrimination based on
his race and political activities. Before the Court is the Motion
of the various defendants to Strike and Dismiss the complaint.
For the reasons stated herein, defendants' motion is granted in
part and denied in part.
Plaintiff's complaint is in five counts alleging constitutional
violations under 42 U.S.C. § 1981, 1983, 1985, and 2000d.
Jurisdiction in this Court is based in 28 U.S.C. § 1343(3).
Prior to December 2, 1983, plaintiff held the positions of
Resource Identification and Acquisition Coordinator, Organized
Crime Division and Commander of the Drug Enforcement
Administration Task Force Component in the Chicago Police
Department. On the aforementioned date, plaintiff was demoted
from his Coordinator position to the position of Sergeant. In
addition, on December 29, 1983, plaintiff was demoted from his
Drug Enforcement Administration Commander's position to the
Sergeant in the Department's Twelfth District. Plaintiff alleges
that these demotions resulted in a substantial reduction in
plaintiff's salary and pension benefits and that in addition, the
plaintiff suffered great humiliation and emotional distress.
Count I of the complaint is brought under 42 U.S.C. § 1981. It
alleges as to both aspects of the demotion that defendants
Washington and Rice "knowingly and intentionally and
discriminatorily demoted the Plaintiff . . . because the
Plaintiff is white." Defendants Washington and Rice are black. No
other facts relating to the motivation behind the demotion are
The allegations contained in Count I are conclusory and
therefore cannot support a well-pleaded claim for relief. The
Seventh Circuit, in unequivocal language, has stated:
To sufficiently state a cause of action the plaintiff
must allege some facts that demonstrate that his race
was the reason for the defendant's [action]. His
failure to allege such facts rendered his
discrimination claim under § 1981 or § 1985
incomplete. (emphasis supplied)
Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982).
Because it fails to provide any facts whatsoever in support of
the conclusory allegation of race discrimination, Count I must be
dismissed for failure to state a claim.
In Count II, plaintiff asserts a claim based in 42 U.S.C. § 1983.
The basis of that claim is that plaintiff, a registered
Democrat, supported defendant Washington's opponent, Jane M.
Byrne, in the Democratic Mayoral Primary Election and that, as a
result, he was demoted from his positions.
In connection with this Count, defendant argues that the City
of Chicago should be dismissed because the plaintiff has failed
to allege that his demotion was the result of the implementation
of a custom or policy. Under 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), a municipality may be held liable as a
"person" under § 1983, but only for unconstitutional action which
either "implements or executes a policy statement . . ." or
"constitutes a governmental `custom' . . ." Id. at 690-91, 98
S.Ct. at 2035-36. Under Monell, municipal liability may not be
based on a theory of respondeat superior. Id.
As to the City of Chicago, no allegation of custom or policy is
made in Count II. Indeed, the only assertion even remotely
related to custom or policy is that by demoting plaintiff,
defendants Washington and Rice implemented "the patronage custom
of the Democratic party." Clearly, this allegation does not refer
to a custom or policy of the City, thus necessitating dismissal
of Count II as to the City of Chicago.
Similarly, it is argued that defendant Washington should be
dismissed from Count II because the only allegations of
Washington's personal involvement rest on conclusory allegations
that Washington was responsible for plaintiff's demotion because
as Mayor of the City of Chicago, he was Rice's supervisor and was
therefore vicariously liable. However, the Court does not read
the complaint in this manner.
The allegations of the complaint do not contend that Rice alone
acted and that, as Rice's superior, Washington should be held
liable. Instead, the complaint clearly reads that Washington and
Rice were each personally responsible for the demotions and that
these two defendants were the individuals who committed the
unconstitutional acts. Thus, dismissal of Washington from Count
II is not warranted.
COUNTS III AND IV
Counts III and IV are based in 42 U.S.C. § 1985(3). In Count
III, plaintiff alleges that Washington, Rice, and other black
Washington supporters conspired to demote and otherwise harass
of the Chicago Police Department including the plaintiff. In
Count IV, it is alleged that a similar conspiracy existed
involving Washington, Rice, and other political supporters of
Washington against supporters of Jane M. Byrne. As to neither
Count are specific facts alleged in support of plaintiff's
In this Circuit, it is quite clear that allegations of
conspiracy must be supported by specific facts. Briscoe v. LaHue,
663 F.2d 713, 723 (7th Cir. 1981); Tarkowski v. Robert Bartlett
Realty Co., 644 F.2d 1204 (7th Cir. 1980); (quoting Sparks v.
Duval County Ranch Co., 604 F.2d 976, 978 (5th Cir. 1979)
("[M]ere conclusory allegations of conspiracy cannot, absent
reference to material facts, survive a motion to dismiss.")).
However, in the case at bar, specificity is plainly lacking.
Plaintiff has indicated no facts whatsoever to support his
conspiracy theory, thus requiring that these Counts be dismissed.
Count V is based upon 42 U.S.C. § 2000d. Under § 2000d:
No person in the United States shall, on the ground
of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.
In Simpson v. Reynolds Metal Co., Inc., 629 F.2d 1226 (7th Cir.
1980), the Court set out the standard for whether an individual
can sue under § 2000d. According to the Court:
The legislative history of Title VI . . . lends
support to the conclusion that Congress did not
intend to extend protection under Title VI to any
person other than an intended beneficiary of federal
629 F.2d at 1235.
Thus an individual may not sue unless he is within the group of
people who are the intended beneficiaries of the federal aid. In
the case at bar, plaintiff alleges that the Chicago Police
Department is a federally funded program. However, he does not
allege that he is among the intended beneficiaries of such
funding. Having failed to make such an allegation, plaintiff
cannot bring a claim under § 2000d.
For the foregoing reasons, defendants' Motion to Dismiss is
granted in part and denied in part. Counts I, III, IV and V are
dismissed in their entirety. Count II is dismissed as to the City
of Chicago only.*fn1
IT IS SO ORDERED.