violations amounted to a purposeful and invidious denial of
plaintiff's equal protection rights.
As the Supreme Court has recently reiterated, "[i]n our
criminal justice system, the Government retains `broad
discretion' as to whom to prosecute." Wayte v. United States, ___
U.S. ___, ___, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). A selective
prosecution violates the Equal Protection Clause only when it is
motivated by a discriminatory purpose and is shown to have a
discriminatory effect. This discrimination must be based on an
unjustificable classification, such as race, religion or other
arbitrary classification. Id.; see also Oyler v. Boles,
368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). While
plaintiff contends that defendants arrested him due to a desire
to harass or injure plaintiff personally, he has not alleged that
his arrest was due to any invidious class-based discrimination.
Plaintiff is a white male. He has failed to state a claim based
on selective prosecution, and those portions of his complaint are
dismissed, with prejudice.
Plaintiff also claims that defendants' "super-strict"
surveillance of his home and car the night of June 30, 1983,
violated his constitutional rights. The only surveillance
incidents plaintiff refers to are defendant Childs' "stake-out"
of plaintiff's home between 10:00 p.m. and midnight that night,
and defendant Rozkuszka's "tail" on plaintiff's car after
plaintiff left the DesPlaines police station. Amended Complaint,
¶¶ 9, 10.
Police surveillance tactics are constitutional so long as they
do not intrude on a person's reasonable expectation of privacy.
See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d
576 (1968); Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61
L.Ed.2d 220 (1979). Therefore, surveillance of an individual's
home from a public area and the following of an automobile on
public streets and highways are permitted. United States v.
Knotts, 460 U.S. 276, 280-82, 103 S.Ct. 1081, 1084-85, 75 L.Ed.2d
55 (1983) ("A person traveling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.") Plaintiff has not alleged
that defendants illegally entered his home or otherwise intruded
on his privacy. Therefore, plaintiff has suffered no infringement
of his Fourth Amendment rights.*fn9
Otherwise lawful surveillance may give rise to a civil rights
action, but only if the surveillance affected plaintiff's conduct
in exercising his constitutional rights, thereby causing an
injury. Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154
(1972); Alliance to End Repression v. City of Chicago,
742 F.2d 1007, 1009-10 (7th Cir. 1984); Ghandi v. Police Department of
City of Detroit, 747 F.2d 338, 347 (6th Cir. 1984); Kraus v.
Village of Barrington Hills, 571 F. Supp. 538, 542-43 (N.D.Ill.
1982) (Grady, J.). Plaintiff must show that his rights, such as
his First Amendment rights to speech or association, were limited
or "chilled" by a specific present objective harm due to the
surveillance or threat of a specific future harm. Laird, 408 U.S.
at 14, 92 S.Ct. at 2326.
Plaintiff makes no mention of any change in his conduct which
resulted from defendants' actions, nor do we see how the limited
surveillance on that one evening could have unconstitutionally
chilled plaintiff's rights. There are no allegations that the
surveillance went beyond the activities of June 30 or were
otherwise excessive or abusive. Plaintiff's surveillance claims
are therefore dismissed, with prejudice.
Although plaintiff does not specifically invoke
42 U.S.C. § 1985(3),*fn10 he doe
allege that defendants' conduct "was in furtherance of a plan of
the defendants, and in conspiracy with the Chief of Police of the
City of DesPlaines, and with the police department of the City of
DesPlaines, and of the City of DesPlaines," to harass, embarrass
and discredit plaintiff, and get him fired from his job. Amended
Complaint, ¶ 15. In order to state a claim under § 1985(3), a
conspiracy must have been motivated by racial or other
class-based animus. Griffin v. Breckenridge, 403 U.S. 88, 100-02,
91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); Bell v. City of
Milwaukee, 746 F.2d 1205, 1233 (7th Cir. 1984). Moreover, the
class distinction must be one that is as invidious as those that
have been historically suspect, such as race, national origin,
sex or religion. D'Amato v. Wisconsin Gas Co., 760 F.2d 1474,
1485-86 (7th Cir. 1985) (class-based discrimination against the
handicapped is not actionable under § 1985(3)).
Plaintiff alleges that defendants' actions were due to their
malicious intent against him personally, but he has not set forth
any facts which indicate a class-based as opposed to
individually-based animus that would give rise to a cause of
action under § 1985(3). Accordingly, plaintiff's conspiracy
claims are dismissed with prejudice.
Claims Against Defendants Alfano and the City of DesPlaines
The only causes of action remaining are plaintiff's allegations
of malicious prosecution and illegal arrest. We will address the
supervisory liability of defendants Alfano and the City of
DesPlaines for these claims.
It is well established that supervisory personnel and
municipalities cannot be held responsible under § 1983 for the
actions of subordinate employees solely on a theory of respondeat
superior. Liability may only be imposed where there are official
policies, customs or practices which violate constitutional
rights, or the supervisor was personally involved in the alleged
unconstitutional actions. 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); Bell v. City of Milwaukee, supra, 746 F.2d at 1269;
Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1980). In addition,
the Seventh Circuit has recently held that "[a] complaint that
tracks Monell's requirement of official policy with bare
allegations cannot stand when the policy identified is nothing
more than acquiescence in prior misconduct," and now requires
that plaintiffs plead some facts which indicate the existence of
an unconstitutional policy or practice. Strauss v. City of
Chicago, 760 F.2d 765, 767 (7th Cir. April 17, 1985).
Other than the conspiracy allegations, see discussion supra at
103-04 plaintiff alleges only that defendants Alfano and the City
of DesPlaines "engaged in a course of conduct which violates the
civil and constitutional rights of the Plaintiff" (Amended
Complaint, ¶ 6); acquiesced in the "super-strict" surveillance of
plaintiff's home (¶ 9); and instructed police officers to follow
plaintiff (¶ 10). There are no other facts in the complaint as to
the individual actions of defendant Alfano, nor are there
allegations that a city policy or practice caused plaintiff's
injuries. Furthermore, plaintiff has not come forward with any
evidence following discovery to further implicate Alfano and the
city, while Alfano has submitted his affidavit denying any
knowledge of or involvement in the incidents alleged in
plaintiff's complaint. Defendants' Motion for Summary Judgment on
Plaintiff's First Amended Complaint, Affid. of Leroy Alfano.
Summary judgment is therefore granted in favor of defendants
Alfano and the City of DesPlaines on plaintiff's remaining claims
and they are dismissed from this case.
Summary judgment is granted in favor of all defendants on
plaintiff's defamation claims. Plaintiff's selective prosecution,
surveillance, and conspiracy claims are dismissed with prejudice
for failure to state a cause of action. Summary judgment is
granted in favor of defendants Alfano and the City of DesPlaines
on plaintiff's remaining claims for illegal arrest and malicious
prosecution, and they are dismissed from this case entirely.
Defendants' motion for attorneys' fees pursuant to 42 U.S.C. § 1988
is taken under advisement until the close of this case.
This case will now be considered ready for trial on plaintiff's
claims for illegal arrest and malicious prosecution.