United States District Court, Northern District of Illinois, E.D
September 5, 1984
RICHARD KNUDSEN, PLAINTIFF,
D.C.B., INC.; BARBARA VERREY; CITY OF CHICAGO; THOMAS FALLON, A POLICE OFFICER OF THE CITY OF CHICAGO, DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
The instant matter was filed under 42 U.S.C. § 1983 and
Illinois common law for violations of plaintiff's
constitutional rights and other acts which were tortious in
nature. Before the Court are the motions to dismiss of D.C.B.,
Inc. and the City of Chicago, and the motion to strike of
Thomas Fallon. For the reasons stated herein, the motions of
D.C.B., Inc. and the City of Chicago are granted and the motion
of Thomas Fallon is denied.
Jurisdiction over the instant matter is invoked under
28 U.S.C. § 1331 and 1343.
The complaint alleges that on January 19, 1982, Officer
Thomas Fallon went onto the plaintiff's property without a
warrant or legal authorization and recovered two bags which had
allegedly been stolen from D.C.B., Inc. After the two bags were
recovered, Fallon went to plaintiff's door and asked if "Lenny"
was home. When plaintiff responded that he was not, Fallon
asked if the bags belonged to plaintiff. When plaintiff
answered "no" to this question, Fallon threatened plaintiff
with injury and informed him that he would be arrested if
permission to search the house was not given. Fallon then
arrested plaintiff, allegedly without probable cause, and
forced him to go to the 14th District Police Station without
shoes or an overcoat despite the fact that it was cold outside
and there was snow on the ground. Plaintiff was held at the
police station for ten hours before bond was set despite the
fact that within an hour of the arrest, an agent of the
plaintiff was at the station with bond money.
It is alleged that on the day of plaintiff's arrest,
defendant Verrey, an employee of D.C.B., Inc. was informed by
Fallon that plaintiff had knowingly obtained control over and
concealed the allegedly stolen property and that Verrey, acting
on behalf of D.C.B., Inc., and without probable cause,
thereafter swore out a criminal complaint against plaintiff. It
is further alleged that as an act in furtherance of a
conspiracy between Fallon and Verrey, Fallon testified falsely
at plaintiff's criminal trial. Verrey, however, testified that
she never saw plaintiff take the items. Plaintiff was found not
guilty on the charge of theft.
Plaintiff seeks damages against defendants Fallon, Verrey,
and the City of Chicago in Counts I and II under 42 U.S.C. § 1983
for the acts alleged and based on a conspiracy between
the parties. In Counts III and IV, Knudsen seeks recovery
against all defendants for false arrest and imprisonment and
I. The City of Chicago's Motion to Dismiss
In its motion to dismiss, the City of Chicago makes two
arguments. First, the City contends that Counts I and II of the
plaintiff's complaint must be dismissed because they do not
allege with sufficient specificity a custom or policy of the
City to delay the release of persons who have fulfilled the
requirements for release under bond or one which permits police
officers to testify falsely at criminal trials. In addition,
the City seeks dismissal of Count III
based on a violation of the statute of limitations. The Court
will consider these arguments seriatim.
In 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), the
Supreme Court held that a municipality may not be held liable
for the actions of its agents under respondeat superior.
However, a municipality may be subject to liability for the
unconstitutional action of its agent where such action either
(1) "implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
that body's officers," or (2) constitutes a "governmental
custom even though such a custom has not received formal
approval through the body's official decision-making channels."
Id. at 690-91, 98 S.Ct. at 2035-2036; Giarrusso v. City of
Chicago, 539 F. Supp. 690, 692 (N.D.Ill. 1982).
It is apparently the latter type of "official policy" that
plaintiff claims caused his injuries in the instant case. In
Giarrusso, this Court stated that ". . . a complaint must be
dismissed if, when subject to careful examination, the
complaint appears to have merely attached a conclusory
allegation of `policy' to what is in essence a claim based on a
single unconstitutional act. Id. at 693. It is thus necessary
to allege more than a single act of unconstitutional conduct.
See Cohen v. Illinois Institute of Technology, 581 F.2d 658,
663 (7th Cir. 1978); Rivera v. Farrell, 538 F. Supp. 291, 296
(N.D.Ill. 1982); Williams v. City of Chicago, 525 F. Supp. 85,
90 (N.D.Ill. 1981); Hamrick v. Lewis, 515 F. Supp. 983
In the case at bar, the plaintiff has made the following
31. It is the policy of the City of Chicago to
delay the release of persons who have fulfilled
each and every requirement for release under bond
in order that they be further injured, especially
and more specifically in cases involving illegal
and unconstitutional searches and arrests and
32. It is the policy of the City of Chicago to
allow its agents (police officers) to testify
falsely at criminal trials, to take no action for
false testimony and to have no procedures to
determine whether an agent has had a pattern of
illegal searches, seizures and false testimony,
thus giving its agents the belief that such
actions were proper and that the City of Chicago
would not investigate those acts.
Plaintiff's allegations of custom and policy against the City
are plainly conclusory. No specific allegations are made that
the incidents plaintiff complains of are more than isolated
incidents or were otherwise the manifestation of a custom or
policy of the City. No facts are alleged with sufficient
particularity which indicate that a policy, practice or custom
of the City caused the alleged deprivation of plaintiff's
constitutional rights. The bald, conclusory allegations of
Counts I and II that a custom or policy of the City caused a
violation of the plaintiff's rights must therefore be dismissed
The City also seeks dismissal of the common law claims.
Jurisdiction over such claims is based upon pendant
jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 86
S.Ct. 1130, 16 L.Ed.2d 218 (1966). As the Court is hereby
dismissing the federal claims against the City, it consequently
loses jurisdiction over the pendant claims and must dismiss
these claims as well.
II. Fallon's Motion to Strike
Defendant Fallon has moved to strike paragraph 24 of the
plaintiff's amended complaint which states:
24. As an act in furtherance of the agreement to
conspire to violate Plaintiff's
constitutional rights, Fallon falsely testified at
Plaintiff's trial that Plaintiff had made
incriminating statements at the time of the
illegal search and arrest.
Fallon correctly argues that under Briscoe v. Lahue,
460 U.S. 325
, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), a police officer is
immune from suit for perjured testimony. However, Fallon
misconstrues plaintiff's complaint. Plaintiff does not allege
that Fallon's testimony was the act which violated plaintiff's
rights; rather, it is merely alleged that such testimony was an
act in furtherance of an underlying conspiracy between the
defendants to harass plaintiff and otherwise deny his
constitutional rights. Insofar as plaintiff does not seek to
recover solely based on Fallon's alleged perjury, Fallon's
motion to strike must be denied.
III. D.C.B.'s Motion to Dismiss
D.C.B. has moved to dismiss the plaintiff's amended complaint
based on lack of subject matter jurisdiction over the claims
against it. D.C.B. is sued only under Counts III and IV which
contain allegations of the Illinois common law torts of false
arrest and imprisonment and malicious prosecution.
As no independent basis for jurisdiction is alleged, D.C.B.
is essentially joined as a pendent party. Where a party brings
suit against a first defendant under a recognized
jurisdictional basis and seeks to join a second defendant with
respect to whom no independent jurisdictional basis exists,
such second defendant is referred to as a pendent party.
Hixon v. Sherwin Williams Co., 671 F.2d 1005 (7th Cir. 1982).
The doctrine of pendent party jurisdiction has never been
expressly approved by the Supreme Court, and in fact was
negatively referred to in Aldinger v. Howard, 427 U.S. 1, 96
S.Ct. 2413, 49 L.Ed.2d 276 (1976). Pendent party jurisdiction
has generally met with disfavor in this Circuit. See In re Oil
Spill by Amoco Cadiz, 699 F.2d 909, 913-14 (7th Cir. 1983);
Hixon, 671 F.2d 1005, 1008-9; Marcano v. Northwestern
Chrysler-Plymouth Sales, 550 F. Supp. 595 (N.D.Illinois 1982).
Indeed, the Seventh Circuit recently noted, "Although pendent
party jurisdiction is not dead, neither is it in the best of
health." Thomas v. Shelton, 740 F.2d 478 at 487 (7th Cir.
In a situation analogous to the case at the bar, another
judge in this district has held that the Supreme Court's
decision in Aldinger, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276
(1976) and cases decided by the Seventh Circuit Court of
Appeals do not allow the use of pendent party jurisdiction.
Bostedt v. Festivals, Inc., 569 F. Supp. 503 (N.D.Illinois 1983)
(Hart, J.). In that case the plaintiff sought to attach a state
law claim against Festivals, Inc. to his federal law § 1983
claim against the City of Chicago and two police officers of
the City. That court found that unless an independent basis for
jurisdiction was found, it was not the intention of Congress or
of the Supreme Court to allow pendent party claims to attach to
§ 1983 claims in the federal courts. Id. at 505-6. This Court
agrees. In the view of this Court, with certain inapplicable
narrow exceptions, there is no pendent party jurisdiction in
this Circuit. See In re Oil Spill of Amoco Cadiz,
699 F.2d 909 and Hixon v. Sherwin Williams Co., 671 F.2d 1005. For this
reason D.C.B.'s motion to dismiss for lack of jurisdiction must
For the reasons stated herein, the City of Chicago's motion
to dismiss is hereby granted as to all Counts. The motion to
strike of defendant Fallon is denied and the motion to dismiss
of D.C.B., Inc. as to Counts III and IV is granted.
IT IS SO ORDERED.