United States District Court, Northern District of Illinois, E.D
June 20, 1984
CRAIG S. STRAUSS, PLAINTIFF,
CITY OF CHICAGO, ETC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff, Craig S. Strauss (Strauss), brought this suit against the
City of Chicago (the City) and an unnamed police officer (Officer Doe).
Strauss alleges that defendants violated his rights under
42 U.S.C. § 1983, the first and fourteenth amendments to the United
States Constitution, and the constitution and statutes of the State of
Illinois. The case is before the court on the City's motion to dismiss
for failure to state a federal claim. Strauss contests the motion only
with respect to count I.*fn1
I. The Complaint
Count I alleges that Officer Doe arrested Strauss without probable
cause on March 14, 1983. Complaint ¶ 5. Strauss also claims that
Officer Doe struck him in the face. Strauss alleges the following with
respect to the City:
a. Had a custom and practice of hiring persons such as
Defendant JOHN DOE, whose prior history of brutality
have rendered them unacceptable for hire.
b. Had a custom or practice of allowing Chicago Police
Officers, such as Defendant JOHN DOE, to remain
cloaked with legal authority and employed as Chicago
Police Officers, even though their experience on the
job showed them to be brutal in nature and frequent
violators of civil rights of persons in custody.
c. Had a custom or practice of allowing those in
custody to be silenced by causing them to be beaten
and physically abused.
d. Had a custom and practice of conducting
investigations against police officers, by which said
officers would be exonerated of any fault as a result
of the investigative procedures employed by the police
department; and which would result in the continued
employment and cloak of authority upon brutal officers
such as Chicago Police Officer John Doe.
8. As a proximate result of one or more of the
aforesaid, Plaintiff Craig S. Strauss suffered and
will continue to suffer injuries of a personal and
Id. at ¶¶ 7-8.
In ruling on a motion to dismiss, the court must "take [the
plaintiff's] allegations to be true, and view them, together with
reasonable inferences to be drawn therefrom, in the light most favorable
to the plaintiff." Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.
1981). Dismissal for failure to state a claim is improper unless "it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).
A. Constitutional Claims
Strauss may not sue the City directly under the U.S. Constitution.
Congress intended § 1983 to be the exclusive federal remedy for the
unconstitutional actions of city officials. Williams v. Bennett,
689 F.2d 1370, 1390 (11th Cir. 1982), cert. denied, ___ U.S. ___, 104
S.Ct. 335, 78 L.Ed.2d 305 (1983); Ward v. Caulk, 650 F.2d 1144, 1147-1148
(9th Cir. 1981); Molina v. Richardson, 578 F.2d 846, 850-854 (9th Cir.),
cert. denied, 439 U.S. 1048, 99 S.Ct. 724, 58 L.Ed.2d 707 (1978). The
court dismisses count I insofar as it is based directly on the U.S.
B. Section 1982
To prevail on his claim against the City under § 1983, Strauss must
prove that the arrest and beating that he allegedly suffered resulted from
an official policy or custom or usage of the City. Monell v. Department
of Social Services of the City of New York, 436 U.S. 658, 690-691, 98
S.Ct. 2018, 2035-2036, 56 L.Ed.2d 611 (1978). "His complaint will
withstand dismissal if the facts alleged, together with reasonable
inferences to be drawn from them, could lead a reasonable factfinder to
conclude that the actions of [Officer Doe] were the product of some
policy or custom of [the City]." Powe, 664 F.2d at 650.
There is rampant disagreement in this District about the specificity
required in pleading a § 1983 claim against a city, particularly
whether a plaintiff can survive a motion to dismiss if he alleges only
one unconstitutional act by city officials. Compare, e.g., Means v. City
of Chicago, 535 F. Supp. 455, 457 (N.D.Ill. 1982)(Marshall, J.), with
Hamrick v. Lewis, 515 F. Supp. 983 (N.D.Ill. 1981)(Aspen, J.). "The
various approaches taken in these opinions evidence the court's efforts
to draw a principled line between the admittedly generous standards of
federal notice pleading and the principle that a pleading is insufficient
if it merely alleges the conclusions of the pleader without any factual
support." Rivera v. Farrell, 538 F. Supp. 291, 294 (N.D. Ill.
Rivera draws that line between cases which involve affirmative
unconstitutional policies of cities and those which involve such
acquiescence in unconstitutional behavior that passivity itself becomes a
"custom or usage" for which a city can be held
liable under § 1983. For the first type of case, Rivera requires the
plaintiff to allege "a single incident of unconstitutional conduct coupled
with the supposedly unconstitutional affirmative policy that mandated
such action. . . ." 538 F. Supp. at 295 (footnote omitted). For custom or
usage cases, Rivera requires a plaintiff to "plead the existence of such
a pattern or practice by alleging, at least on information and belief,
that he or others similarly situated were victimized on more than one
occasion in the unconstitutional manner alleged in the complaint." Id. at
This dichotomy finds its roots in Monell. In that case, the Court
stated that municipalities could be sued where the allegedly
unconstitutional action "implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by
that body's officers." 436 U.S. at 690, 98 S.Ct. at 2035. Municipalities
are also liable, however, "for constitutional deprivations visited
pursuant to governmental `custom' even though such a custom has not
received formal approval through the body's official decisionmaking
channels." Id. at 690-691, 98 S.Ct. at 2035-2036. Section 1983 includes
customs and usages because "[a]lthough not authorized by written law,
such practices of state officials could well be so permanent and well
settled as to constitute a `custom or usage' with the force of law."
Id., quoting Adickes v. S.H. Kress and Co., 398 U.S. 144, 167-168, 90
S.Ct. 1598, 1613-1614, 26 L.Ed.2d 142 (1970). "Settled state practice .
. . can establish what is state law. . . . Deeply embedded traditional
ways of carrying out state policy . . . are often tougher and truer law
than the dead words of the written text." Monell, 436 U.S. at 691 n. 56,
98 S.Ct. at 2036 n. 56 (quoting Nashville, C. and St.L.R. Co. v.
Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254
Strauss' complaint cannot survive. He makes factual allegations only
with respect to himself. See Complaint at ¶¶ 5-6. His allegations
with respect to the City are conclusory: they claim, with no independent
factual support, that the City had customs and practices which led to his
injuries. Id. at ¶ 7. Strauss as easily could have alleged merely
that the City is liable under § 1983. The court need not accept such
allegations as true. See Mescall v. Burrus, 603 F.2d 1266, 1269 (7th
Cir. 1979) ("In giving the pleadings a liberal construction, however, we
are not required to accept legal conclusions either alleged or inferred
from the pleaded facts."). The court must dismiss this complaint because
no reasonable factfinder could conclude from the facts alleged —
that one individual suffered an unlawful arrest and beating — that
the City had a custom or practice of such activity. Powe, 664 F.2d at
650. Without that custom or practice, the City cannot be liable under
For the reasons stated above, the court grants defendant's motion to
dismiss, and this case is hereby dismissed.