The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendants' motion to dismiss plaintiff's
complaint in a civil rights case. For the reasons stated
herein, the defendants' motion is granted in part and denied in
Plaintiff Percy Nunn filed this civil rights action alleging
his wrongful arrest, beating, and criminal prosecution through
the acts of Officers Labant, Natis, other unknown officers, and
the City of Chicago. Against defendant City of Chicago, the
plaintiff alleges a policy of charging those persons on whom
officers used excessive force with disorderly conduct in order
to justify the use of force. In addition, the City is charged
with failure to discipline officers allegedly previously guilty
of such unwarranted arrests and violence by removing them from
contact with the public or otherwise correcting their behavior.
Finally, in Count II, the City is charged with conspiring with
the named officers to falsely accuse, incarcerate, and
prosecute the plaintiff. Against the named officers,
plaintiff alleges that on February 14, 1983, near 4848 West
Winthrop, Chicago, Illinois, Officers Labant and Natis beat,
bruised, kicked, wounded, and ill-treated plaintiff without
cause or provocation. Plaintiff seeks compensatory and punitive
Defendants set forth five grounds on which to dismiss
plaintiff's complaint in whole or in part: (1) plaintiff's
complaint sets forth a "laundry list" of claims under 42 U.S.C. § 1983,
at least some of which are patently frivolous; (2)
plaintiff fails to state a § 1983 claim against the individual
police officers; (3) plaintiff fails to state a claim for
malicious prosecution; (4) plaintiff fails to state a claim for
conspiracy; and (5) plaintiff fails to sufficiently allege a
policy claim against the City of Chicago.
1. "Laundry List" of § 1983 Claims
Defendant identifies five allegedly frivolous aspects to
plaintiff's complaint. A brief discussion of these five aspects
will help to narrow the issues for defendants' motion to
First, in paragraph 6(a) of Count I, plaintiff alleges
defendants' refusal to arrest or report the named police
officers for beating, falsely arresting, and maliciously
prosecuting him. Since a plaintiff in a § 1983 suit must allege
a deprivation of his constitutional rights, Crowder v. Lash,
687 F.2d 996, 1002 (7th Cir. 1982), defendants conclude that
the failure to arrest or report the police officers does not
constitute a deprivation of plaintiff's constitutional rights.
While this argument has some appeal, the Court believes that it
falls more appropriately within the issue of the alleged City
policy of failure to discipline the police officers, which will
be discussed in section 5.
Second, the Court grants defendants' motion to dismiss the
punitive damage claims against the City. City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d
616 (1981) makes it clear that a municipality is immune from
punitive damages under 42 U.S.C. § 1983. Id. at 271, 101
S.Ct. at 2762. However, the Court denies defendants' motion to
dismiss insofar as it may seek to eliminate all punitive
damages, i.e., against the named officers. The Supreme Court
has held that punitive damages may be awarded under § 1983
"when the defendants' conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others."
Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75
L.Ed.2d 632 (1983); see also Bell v. City of Milwaukee,
746 F.2d 1205, 1266 (7th Cir. 1984).
Third, the Court denies defendants' motion to dismiss
plaintiff's complaint on the basis that it asserts a cause of
action directly under the Constitution. In support of this
argument, defendants cite Turpin v. Mailet, 591 F.2d 426 (2d
Cir. 1979). Turpin held that there is no cause of action
against a municipality directly under the Fourteenth Amendment,
because the plaintiff may proceed against the municipality
under § 1983. Id. at 427. In the present case, plaintiff sues
for constitutional violations and seeks damages under § 1983.
Therefore, even under Turpin, this cause of action against
the municipality is not prohibited.
Fourth, defendants argue that paragraph 9(b) of Count I fails
to allege a violation of the Equal Protection Clause of the
Fourteenth Amendment. A person bringing an action under the
Equal Protection Clause must show intentional discrimination
against him because of his membership in a particular class,
not merely that he was treated unfairly as an individual.
Huebschen v. Dept. of Health and Social Services,
716 F.2d 1167, 1171 (7th Cir. 1983). In the present case, the Court
finds that plaintiff has alleged no "particular class" other
than himself and others who have been treated unfairly. The
"particular class" requirement must be met by a group
identified apart from the alleged unfair treatment. Therefore,
paragraph 9(b) is dismissed only insofar as it rests on the
Equal Protection Clause of the Fourteenth Amendment.
Fifth, defendant argues that paragraph 1 of Count I fails to
allege a Sixth Amendment claim. Nowhere else does the plaintiff
refer to the deprivation of his right to counsel or any facts
pertaining thereto. It is well established that the initiation
of adversary judicial criminal proceedings — by way of formal
charge, preliminary hearing, indictments, information or
arraignment — is the point at which the Sixth Amendment right
to counsel attaches. State Bank of St. Charles v. Camic,
712 F.2d 1140, 1144 (7th Cir. 1983). In the present case, the
plaintiff alleges no facts regarding any questioning by police
at any time and therefore it is impossible to determine whether
plaintiff has sufficiently alleged the elements of a Sixth