United States District Court, Northern District of Illinois, E.D
September 5, 1984
WALLACE CLARK AND LUCILLE CLARK, PLAINTIFFS,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Wallace Clark ("Clark") and his wife Lucille ("Mrs. Clark") sue the
City of Chicago ("City"), Donald T. Podgorny ("Podgorny"), Stephan J.
Wilke ("Wilke"), Richard J. Brzeczek ("Brzeczek") and Francis A. Nolan
("Nolan"), claiming injury from the issuance of a parking citation and
Clark's ensuing arrest and detention on charges of disorderly conduct and
resisting a law enforcement officer. Their nine-count Complaint asserts
claims under 42 U.S.C. § 1983, 1985 and 1986, several theories of
pendent state law claims by Clark, and two pendent loss-of-consortium
claims by Mrs. Clark.
Defendants have moved under Fed.R. Civ.P. ("Rule") 12(b)(6) to dismiss
the Complaint entirely as to City, Brzeczek and Nolan and to dismiss all
but the Section 1983 claim as to Podgorny and Wilke. In an oral bench
ruling June 28 this Court (1) struck all Complaint references to Sections
1985 and 1986 and (2) refused to dismiss City, Brzeczek and Nolan from
Count I's Section 1983 claim.*fn1 This opinion deals
with the Complaint's various state law claims.
In April 1982 Clark and his grandson were seated in his lawfully parked
automobile near 34th and Halsted Streets in Chicago. Chicago police
officers Podgorny and Wilke first falsely cited Clark for illegal
parking, then — without probable cause — forced Clark to go to
the district police station, subjecting him in the process to unprovoked
physical and verbal abuse. They then — again without reasonable
cause — charged Clark with disorderly conduct and resisting an
officer and detained him for a period of time. All charges against Clark
have been decided in his favor.
City, Brzeczek and Nolan have engaged in a pattern of failures in the
training and discipline of Chicago police officers. Those failures have
created a climate that has encouraged the unlawful conduct exemplified by
Podgorny's and Wilke's actions against Clark.
As a result of the conduct already described, Clark has suffered and
will continue to suffer serious physical and mental injury. Mrs. Clark
has in turn sustained a loss of consortium.
Clark's Pendent State Law Claims*fn3
Whenever plaintiffs stray from the mandates of Rule 8(a)(2) ("a short
and plain statement of the claim") and Rule 8(e) ("simple, concise, and
direct" averments), both the defendants and the court are disadvantaged
in dealing with the complaint. Clark's Complaint is no exception. Its
factual allegations are unduly repetitive, and it multiplies a single
episode into a plethora of claims besides the Count I claim already upheld
under Section 1983:
1. Count II asserts all defendants violated Clark's
rights under the due process clause of the Illinois
Constitution, Ill. Const. art. I, § 2.
2. Count III advances a claim against all defendants
for false arrest and imprisonment.
3. Count IV charges all defendants based on the
Podgorny-Wilke assault and battery.
4. Count V is a malicious prosecution action against
5. Count VI runs against City for negligence of its
duties in the hiring, training, supervising and
disciplining of police officers.
6. Count VII charges City with willful and wanton
disregard of its duties in the hiring, training,
supervising and disciplining of police officers.
Defendants' position as to Count II is summarized succinctly at R.
There is not [a] common law claim for violation of
one's state constitutional rights, just as there is
not [a] cause of action which may be brought directly
under the United States Constitution.
Clarks add nothing to the analytical process, for their Mem. 2-3 simply
contrasts — without citation of any authority at all — Count
I's federal constitutional claim under Section 1983 with Count II's state
Defendants' proposition is flawed even under federal law. Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971) upheld a damage action directly under the Fourth Amendment
against federal agents who under color of their authority had violated
plaintiff's constitutional rights. In part Bivens (id. at 397, 91 S.Ct. at
2005) rested on language in Marbury v. Madison, 5 U.S. (1 Cranch) 137,
163, 2 L.Ed. 60 (1803):
The very essence of civil liberty certainly consists
in the right of every individual to claim the
protection of the laws, whenever he receives an
True enough the availability of a direct remedy under the federal
Constitution against a state actor (Bivens involved federal actors),
given the previously-upheld existence of Section 1983 rights against the
same state actor, poses other considerations. But it must be remembered
Count II purports to set out a pendent claim, as to which state law
provides the rules of decision.*fn5 And on that score the real question
is whether Illinois law as to the Illinois Constitution parallels the
Bivens analysis as to the United States Constitution.
At least two post-Bivens Illinois Appellate Court decisions have
decided that question in the affirmative, upholding private claims
brought directly against municipalities and state actors under the
Illinois Constitution. Newell v. City of Elgin, 34 Ill. App.3d 719, 724,
340 N.E.2d 344, 349 (2d Dist. 1976) (a search violating Ill. Const. art.
I, § 6); Melbourne Corp. v. City of Chicago, 76 Ill. App.3d 595,
602-03, 31 Ill.Dec. 914, 919-20, 394 N.E.2d 1291, 1296-97 (1st Dist.
1979) (conduct amounting to a "constitutional tort," though defendant
escaped liability because it had been neither knowing nor malicious in
violating any clearly-established constitutional rights).*fn6 Because
Count II can be read as charging knowing or malicious conduct in
violation of the Illinois Constitution's due process guaranty, the count
must survive at this time.
Counts III Through VII*fn7
Not only Count II (see n. 6) but every other pendent claim advanced by
Clark implicates the Immunity Act. Under Illinois law only the Act
provides municipalities and their employees immunity from suit. Clark v.
City of Chicago, 88 Ill. App.3d 760, 764, 43 Ill.Dec. 892, 896,
410 N.E.2d 1025, 1029 (1st Dist. 1980); Melbourne, 76 Ill.App.3d at 603,
31 Ill.Dec. at 920, 394 N.E.2d at 1297. Three of the Act's provisions
require scrutiny in connection with Complaint Counts III through VII.
Act ¶ 2-109 provides:
A local public entity is not liable for an injury
resulting from an act or omission of its employee
where the employee is not liable.
Thus any immunity available to a municipal employee under the Act is
available to the municipality as well. Melbourne, 76 Ill. App.3d at 604,
31 Ill.Dec. at 921, 394 N.E.2d at 1298.
Act ¶ 2-202 reads:
A public employee is not liable for his act or
omission in the execution or enforcement of any law
unless such act or omission constitutes willful and
That provision does not afford qualified immunity from liability for all
acts or omissions of a public employee while on duty, but only for those
connected with the actual execution or enforcement of a law. Arnolt v.
City of Highland Park, 52 Ill.2d 27, 33, 282 N.E.2d 144, 147 (1972).
Whether a public employee is executing or enforcing a law at the critical
time is "a factual determination which in every case must be made in
light of the circumstances involved." King v. City of Chicago,
66 Ill. App.3d 356, 358, 23 Ill.Dec. 386, 388, 384 N.E.2d 22, 24 (1st
Dist. 1978). Similarly, whether or not the public employee "is guilty of
willful and wanton conduct is a question of fact for the jury and should
rarely be ruled upon as a matter of law." Glover v. City of Chicago,
106 Ill. App.3d 1066, 1075, 62 Ill.Dec. 597, 604, 436 N.E.2d 623, 630
(1st Dist. 1982).
Finally, Act ¶ 2-204 provides:
Except as otherwise provided by statute, a public
employee, as such and acting within the scope of his
employment, is not liable for an injury caused by the
act or omission of another person.
No state court decision has been found construing that provision, but
this Court's colleague Judge Prentice Marshall has held Act ¶ 2-204
required dismissal of a complaint seeking to impose on a supervisor,
acting within the scope of his employment, respondeat superior liability
for a police officer's having shot the decedent without probable cause or
other justification. Means v. City of Chicago, 535 F. Supp. 455
Clearly Counts III through V survive against Podgorny, Wilke and City
in light of the Act and cases construing it. As to the individuals, only
the familiar standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 101-102, 2 L.Ed.2d 80 (1957) (reaffirmed this past Term in Hishon v.
King & Spalding, ___ U.S. ___, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59
(1984)) need be addressed. Certainly Clark can conceivably prove a set of
facts establishing either that Podgorny and Wilke were not executing or
enforcing a law when Clark suffered his alleged injury or that they were
guilty of willful or wanton negligence. Either showing would negate the
immunity accorded the officers by Act ¶ 2-202. That would in turn
render unavailable to City any immunity under Act ¶ 2-109. Because
no other provision of the Act immunizes City, Clark can maintain a direct
action against City based upon its agents' conduct. See Arnolt,
52 Ill.2d 27, 282 N.E.2d at 144; Hampton v. City of Chicago, 484 F.2d 602,
610-11 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39
L.Ed.2d 471 (1974).
As to Brzeczek and Nolan, however, Counts III-V must fall. They are
named only on respondeat superior grounds, and the Means reading of Act
¶ 2-204 (the only sensible one) insulates them from such liability.
This opinion turns then to Counts VI and VII, directed only against
City for the harm allegedly suffered at the hands of Podgorny and Wilke.
Precisely the same analysis that preserved Counts III-V as against City
also saves Counts VI and VII: Because Clark may be able to prove facts
that would not insulate Podgorny and Wilke under Act ¶ 2-202, City
cannot escape liability under Act II 2-109 at this early stage of the
Counts III-V and VII seek an award of punitive damages against City.
City correctly contends such relief is barred under Act ¶ 2-102:*fn9
Notwithstanding any other provision of law, a local
public entity is not liable to pay punitive or
exemplary damages in any action brought directly
against it by the injured party.
All Clarks' claims against City are direct actions. Though Clarks'
lawyers did not acknowledge their mistake as they should have (their
memorandum opted instead for total silence), the punitive damages prayers
Each of Counts II through VII also asks for attorneys' fees. Again
defendants are right in saying Illinois law (this time unbroken case
law, though they do not cite it) does not permit such an award as to the
kinds of state law claims involved here.
Clark responds with the irrelevancy that 42 U.S.C. § 1988 may
permit recovery on the pendent state claims (perhaps even if Clark were to
lose on his Section 1983 claim). See Church of Scientology of California
v. Cazares, 638 F.2d 1272, 1291 (5th Cir. 1981) and cases cited there.
That is indeed an irrelevancy, because any such recovery must come (if at
all) under Section 1988, not under the pendent claims as such.
Consequently the fee claims are stricken from Counts II through VII.
Mrs. Clark's Pendent State Law Claims
Complaint Counts VIII and IX assert claims against all defendants for
Mrs. Clark's loss of consortium resulting from her husband's alleged
injuries. Those allegations raise the vexed question of pendent party
Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1008-09 (7th Cir. 1982)
and Johnson v. Miller, 680 F.2d 39, 41 (7th Cir. 1982) strongly suggested
such jurisdiction was moribund (if not indeed entirely dead) in this
Circuit. Most recently, however, Judge Posner (again, as in the earlier
cases, speaking for the court) has retreated from that position where the
principal claim is grounded in federal question, rather than diversity,
jurisdiction. Bernstein v. Lind-Waldock & Co., 738 F.2d 179 at 187-188
(7th Cir. 1984). But even there the Court of Appeals treads gingerly
(id. at 187):
[I]f the pendent party concept retains any vitality
today . . . when there is greater concern with
avoiding unnecessary federal inroads into state
jurisdiction than when the concept first emerged, it
survives as a convenience to a party who has a
substantive federal claim . . . rather than as a
service to the cause of judicial economy.
That surely addresses only the propriety of a proper plaintiff who asks
to add a pendent party defendant. But Mrs. Clark, who lacks a federal
claim altogether, does not fall within the terms of the Bernstein
It is true, as this Court has held in a different context, that Mrs.
Clark's loss-of-consortium action is wholly derivative from Clark's
allegations of injury. Jarvis v. Stone, 517 F. Supp. 1173, 1177
(N.D.Ill. 1981) and cases cited there. Her claims, however, involve added
substantive elements and a wholly different measure of damages from those
advanced by Clark. This Court's assumption of jurisdiction would afford
no judicial economy here,*fn10
nor would it provide "a convenience to a party who has a substantive
federal claim" — Clark himself (except of course in the purely
derivative sense that what benefits Mrs. Clark would benefit him).
Indeed the plain implication of Zahn v. International Paper Co.,
414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) is that joinder of
Mrs. Clark's claims is jurisdictionally impermissible. As the Court there
said (id. at 301, 94 S.Ct. at 512), quoting the Court of Appeals decision
below, "one plaintiff may not ride in on another's coat-tails."
At best the grounds for pendent party jurisdiction here are weak, at
worst wholly nonexistent. And even if this Court were arguably to have
the power to assume jurisdiction over Mrs. Clark's claims (a doubtful
proposition), the proper exercise of its discretion to do so (see Gibbs,
383 U.S. at 725-26, 86 S.Ct. at 1138-39) calls for dismissal of Counts
VIII and IX.
Defendants' motions to dismiss are denied as to:
1. Clark's Count II claims under the Illinois
2. Clark's claims against City in Counts III through
Defendants' motions to dismiss are granted as to:
1. Clark's claims against Brzeczek and Nolan in
Counts III through V;
2. Mrs. Clark's claims for loss of consortium
in Counts VIII and IX;
3. Clark's prayer for punitive damages against
4. Clark's claims for attorney's fees as to all
pendent state law claims.
Defendants are ordered to file their answer to the surviving portions of
the Complaint on or before September 19, 1984.