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May 15, 1985


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


Kenneth Payne, Jr. ("Payne") has filed an all-too-familiar*fn1 type of 42 U.S.C. § 1983 ("Section 1983") Complaint, charging gratuitous brutality on the part of individual police officers and a general and continuing failure on the part of their municipal employer (here the City of LaSalle, "LaSalle," rather than the most frequently encountered City of Chicago) to have controlled such conduct. LaSalle has moved for its dismissal under Fed.R.Civ.P. ("Rule") 12(b)(6). For the reasons stated in this memorandum opinion and order, LaSalle is dismissed from the Complaint without prejudice.

Payne's kind of complaint has produced differing views among the members of this District Court, epitomized on the one hand by Judge Decker's dismissal of the complaint affirmed last month in Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985) and on the other by Judge Marshall's opinion in Means v. City of Chicago, 535 F. Supp. 455 (N.D.Ill. 1982), disapproved in Strauss, at 769-70. This Court has from the beginning*fn2 shared Judge Marshall's view that to require evidentiary pleading of the facts demonstrating a city's pattern of knowing acquiescence in police misconduct creates a Catch 22 situation. Assume a plaintiff has been subjected to a wanton beating by the police. Until the victim has obtained, through discovery, the official disciplinary file of the officer or officers involved, how is the victim able to allege in his or her complaint evidentiary facts (as contrasted with ultimate or conclusory facts) to support a charge of knowing acquiescence against the employing city?*fn3

And that is of course the easier case. Assume rather the plaintiff wants to prove inaction by the municipality in the face of pervasive police misconduct (say toward black arrestees), not just misconduct by the specific arresting officers. If proved, that could legitimately lead a jury to infer the city, by its tacit encouragement of brutality toward (say) blacks, had the necessary proximate causal nexus to support direct liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611 (1978).*fn4 But without the city as a named defendant in the first instance, discovery of such misconduct by officers other than the direct offender could not be obtained even given the low threshold of discoverability under Rule 26(b)(1).

Despite those considerations (acknowledged only in part by the Court of Appeals's opinion), Strauss has just upheld the Rule 12(b)(6) dismissal of a complaint much like the one filed by Payne here. Though Strauss purports to find support in the liberal pleading standard of Conley v. Gibson, 355 U.S. 41, 45-46, 47, 78 S.Ct. 99, 101-02, 102, 2 L.Ed.2d 80 (1957),*fn5 in fact it appears to create a real double standard-one in which a Section 1983 complaint must meet a more stringent fact-pleading requirement than any other. Whether or not that is so, or whether it is instead reflective of a more general current trend in our Court of Appeals,*fn6 it does violence to the mandate of Rule 8(a)(2) ("a short and plain statement of the claim showing that the pleader is entitled to relief").

Lest this be thought an unfair criticism, it is only necessary to read the forms of complaint included in the Appendix of Forms following the Rules, incorporated by reference in Rule 84:

  The forms contained in the Appendix of Forms are sufficient
  under the rules and are intended to indicate the simplicity and
  brevity of statement which the rules contemplate.*fn7
  It is plain indeed that pleading evidentiary facts as Strauss requires, rather than conclusory facts, is not the way the draftsmen of the Rules viewed the idea of notice pleading. Indeed, as this Court said in Thompson, 503 F. Supp. at 252, the Rules' draftsmen knew very well how to mandate "particularity" in pleading when they wanted to; see Rule 9(b), imposing just such a requirement as to "the circumstances constituting fraud or mistake." And no "particularity" is marked out by the Rules for Section 1983 actions generally or for Monell allegations specifically.

If this approach rather than that exemplified by Strauss creates more work for the district courts,*fn8 that is a lesser price to pay than the price of foreclosing injured plaintiffs municipal defendants, the presence of the stricter standard under amended Rule 11*fn9 offers a shield against abuse by plaintiffs or their lawyers who file or pursue obviously groundless claims — or who pursue claims that may have appeared tenable at the outset, once their factual groundlessness becomes obvious.*fn10

For all this, however, this Court is duty bound to obey Strauss. Although Payne provides detailed allegations of the claimed use of unjustified force and violence by the defendant officers, his allegations against LaSalle (Complaint Count I ΒΆ 1 and all of Counts III and IV) are of the summary form condemned in Strauss. Accordingly this Court dismisses Counts III and IV and dismisses LaSalle from this action as ...

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