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NUNN v. CITY OF CHICAGO

March 6, 1985

PERCY NUNN, JR., PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, AND POLICE OFFICER LABANT, STAR NO. 13466, POLICE OFFICER NATIS, STAR NO. 8013, AND OTHER UNKNOWN POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

  ORDER

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 part.

I. FACTS

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 damages.

II. DISCUSSION

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 dismiss.

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 Amendment ...


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