The opinion of the court was delivered by: Foreman, Chief Judge:
Before the Court is defendants' Motion to Dismiss. Plaintiff, an
attorney representing several residents of the Town of McLeansboro, has
alleged that he contacted defendant Engle, Town Supervisor, for the
purpose of determining the rules, procedures, and standards used in
assessing eligibility for General Assistance. Plaintiff was attempting to
discover the basis for denying General Assistance to some of his
clients. According to plaintiff, defendant Engle suggested a meeting at
the town office. Plaintiff attended the meeting with defendant Engle and
several other town officials, but when it appeared that further
discussion would be fruitless, plaintiff decided to leave.
Plaintiff alleges that as he attempted to leave, defendant Engle
approached him, grabbed him, and hit him from behind on the shoulders,
neck, ears, and head, thereby causing plaintiff to suffer cuts,
bleeding, lacerations, bruises, contusions, abrasions, humiliation,
fear, upset, and lasting emotional injury. Plaintiff alleges that he did
not strike back and that none of the town officials came to his
assistance or otherwise tried to stop the attack. In his Complaint,
plaintiff contends that defendant Engle had discussed his intention to
assault and attack plaintiff with at least one official prior to the
Defendant Engle then left the town office, and plaintiff attempted to
continue to meet with the remaining town officials, but alleges that he
could not effectively participate due to the beating he had received.
Plaintiff went outside, where he was confronted by defendant Engle.
Plaintiff returned to the meeting and eventually called the sheriff, who
came and assisted plaintiff in his departure. Defendant Engle was charged
and convicted of battery after pleading guilty to the charge.
Plaintiff sets forth two claims for relief, one based on
42 U.S.C. § 1983 and another for assault and battery. Plaintiff
requests actual damages against both defendants and punitive damages
against defendant Engle. Defendants, in their Motion to Dismiss, argue
that plaintiff's claim is not actionable under § 1983, that the
defendants did not act under color of state law, and that punitive
damages are not recoverable against the town. For purposes of defendants'
Motion, all of plaintiff's allegations must be taken as true. Hampton v.
City of Chicago, 484 F.2d 602, 606 (7th Cir. 1973). A complaint should
not be dismissed for failure to state a claim unless "plaintiff can prove
no set of facts in support of his claim" that would entitle him to
relief. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d
263 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2
L.Ed.2d 80 (1957).
Although defendants do not refer to Newport v. Fact Concerts, Inc.,
453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), they are nonetheless
correct in their assertion that it would inappropriate to assess punitive
damages against the Town of McLeansboro. However, plaintiff's Complaint
requests punitive relief only as against defendant Engle, and not the
town. Thus, the Court need not further discuss this issue.
Defendants' contention that a tort committed under color of state law
does not present an actionable 42 U.S.C. § 1983 claim under any
circumstances must be rejected. The Seventh Circuit, while recognizing
that not every tort committed under color of state law is actionable in
federal court, has repeatedly refused to hold that the mere existence of
a state tort remedy precludes a § 1983 claim for constitutional
violations arising out of the same circumstances. For example, in Jackson
v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983), it was recognized that
§ 1983 would impose liability on police and fire department officials
who committed an intentional tort if the officials acted "under color
of, but contrary to, state law." Id., at 1204. In Jackson, the Seventh
Circuit held that the ineffective assistance of state officials at the
scene of an accident did not entail a deprivation of life without due
process of law, and the § 1983 claim was therefore dismissed.
According to the Court, this case was distinguishable from White v.
Rochford, 592 F.2d 381 (7th Cir. 1979), Wood v. Worachek, 618 F.2d 1225
(7th Cir. 1980), and Spence v. Staras, 507 F.2d 554 (7th Cir. 1974),
where inaction on the part of state officials presented viable § 1983
claims because the state had deliberately placed the plaintiffs in
danger. Jackson, 715 F.2d at 1204.
In Bart v. Telford, 677 F.2d 622 (7th Cir. 1982), plaintiff claimed
that her right to free speech had been violated when she was subjected to
harassment after having run for a public office. The Court considered
this to be an actionable § 1983 claim even though it recognized that
the effect of the harassment on her freedom of speech may be small. The
Court expressly noted that "Section 1983 is a tort statute." Id., at
625. Certainly, the act of inviting an attorney to an official meeting
regarding official business and conducted in the town office by town
officials, and then battering the attorney, would present an even
stronger case for a § 1983 claim than the relatively minor harassment
that occurred in Bart.
The often referenced opinion of the United States Supreme Court in
Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),
held that state post-deprivation
remedies were adequate to provide due process to an inmate who had
suffered the loss of a hobby kit through the negligence of officials
acting under color of state law. The Court set forth the two essential
elements of a § 1983 action: "(1) whether the conduct complained of
was committed by a person acting under color of state law; and (2)
whether this conduct deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the United States."
Id., at 535, 101 S.Ct. at 1912. Justice Blackmun expressly noted that
where a case concerned deprivation of life or liberty, as opposed to the
negligent deprivation of property, "the mere availability of a subsequent
tort remedy . . . might well not provide the due process of which the
Fourteenth Amendment speaks." Id., at 546-47, 101 S.Ct. at 1918-19.
Indeed, in a later case the Supreme Court recognized that a tort suit
alone may not vindicate violations of constitutional rights. Logan v.
Zimmerman Brush Co., 455 U.S. 422, 436-37, 102 S.Ct. 1148, 1158-59, 71
L.Ed.2d 265 (1982). See also, Brown v. Brienen, 722 F.2d 360, 365 (7th
Seventh Circuit cases directly applying the analysis in Parratt v.
Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), have
distinguished procedural due process claims such as that made in Parratt
from substantive constitutional violations. See, e.g., Wolf-Lillie v.
Sonquist, 699 F.2d 864, 871 (7th Cir. 1983). Even due process violations
may be cognizable under 42 U.S.C. § 1983 "when the challenged conduct
was so egregious that it `shocks the conscience.' E.g., Rochin v.
California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)."
State Bank of St. Charles v. Camic, 712 F.2d 1140 (7th Cir. 1983), cert.
denied, ___ U.S. ___, 104 S.Ct. 491, 78 L.Ed.2d 686. Although Koch v.
Schneider held that "the common law tort of misuse of legal procedure,
without more, does not rise to the level of a constitutional wrong to be
remedied by § 1983," 550 F. Supp. 846, 852 (N.D. Ill. 1982), this
Court considers that the allegations in plaintiff's Complaint do set
forth actions which rise to the level of a constitutional wrong on the
part of both defendants.
The Seventh Circuit has previously upheld the distinction "between a
common law action for battery and a violation of civil rights to ensure
that the plaintiff received full compensation for his injuries." Freeman
v. Franzen, 695 F.2d 485, 493 (7th Cir. 1982). In the context of use of
excessive force, a prison guard's liability under § 1983 "is not
co-extensive with common law tort liability for battery." Id., at 492
(citations omitted). The same analysis holds true in the context of the
excessive use of force in making an arrest. Spallone v. Village of
Roselle, 584 F. Supp. 1387 (N.D.Ill. 1984). If the use of excessive force
were actionable in the above-cited cases, certainly the allegations in
the instant case state a claim for relief under § 1983.
Plaintiff's Complaint adequately alleges that the defendants acted
under color of state law. Although defendants do not make the argument
that they were acting as individuals and not as state officials, the
Court notes an analogy between the instant case and similar cases
involving public officials accused of wrongful acts beyond the scope of
their authority. For example, in cases involving judicial misconduct,
where a judge performs acts not normally performed by a judge, to the
extent that these acts are unconstitutional, liability may be imposed
under § 1983 without the protection afforded by judicial immunity.
Cf. Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980) (judge performed
prosecutorial acts); Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979) (judge
undertook a racially motivated campaign to discredit a police officer);
Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974) (justice of the peace
assaulted and battered a citizen in the courtroom).
Regarding the § 1983 claim against defendant Town of McLeansboro,
the Court notes that the Seventh Circuit has stated:
. . a defendant's direct participation in the
deprivation is not required. An official satisfies the
requirement of section 1983 if she acts or fails to
act with a deliberate or reckless disregard of
plaintiff's constitutional rights, or if the conduct
causing the constitutional deprivation occurs at her
direction or with her knowledge and consent. Beard v.
Mitchell, 604 F.2d 485, 498-99 (7th Cir. 1979); Adams
v. Pate, 445 F.2d 105, 107 (7th Cir. 1971). See also
Wood v. Worachek, 618 F.2d 1225, 1233 (7th Cir.
1980); Stringer v. Rowe, 616 F.2d 993, 1000-01 (7th
Cir. 1980); Spence v. Staras, 507 F.2d 554, 557 (7th
Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982). See also, Sulie v.
Duckworth, 583 F. Supp. 995, 999 (N.D.Ind. 1984); Estate of Eklund v.
Hardiman, 580 F. Supp. 410, 412-13 (N.D.Ill. 1984). In light of
plaintiff's allegations in his Complaint, § 1983 ...