The opinion of the court was delivered by: Bua, District Judge.
In considering a motion to dismiss under Rule 12(b)(6), a complaint
should not be dismissed unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim that would entitle him
to the relief requested. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079,
1081, 31 L.Ed.2d 263 (1972). The following facts are alleged in the
amended complaint. For the purposes of this motion, the Court assumes
they are true. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir.
Plaintiff, Ronald C. Brown, an adult black male, alleges that on April
23, 1984, between 2:80 and 4:00 p.m., he was driving his car in the City
of Chicago when he encountered mechanical problems. While attending to
his car, two officers of the Chicago Police Department approached the
car. Brown was then arrested and brought to the police station at 35th
Street and Lowe. At the police station, without any provocation, Brown
was severely beaten by a white Chicago police officer, Defendant John
Doe, whose identity is presently unknown to the plaintiff. A second
officer, Defendant Richard Roe, whose identity is also unknown to the
plaintiff, threw water on him. Brown was not allowed to make a telephone
call or obtain medical treatment. Brown was detained at that police
station until 7:00 a.m. the next day when he was
then taken to traffic court and placed in the lock-up there. From traffic
court, Brown was taken to Cook County jail where he was booked and bonded
out on a $200 "eye" bond at approximately 9:00 p.m. During his custody,
Brown was neither advised of his "Miranda" rights nor given the medical
treatment he requested.
The next day, April 25, 1984, Brown was admitted to the hospital. Brown
was diagnosed as suffering from trauma to the chest and head, abrasion of
the eye, fracture of several ribs and a fracture of the hip. Brown
alleges the sole cause of his injuries was the treatment he received at
the 35th Street police station. Brown remained hospitalized until May 4,
1984, when he was discharged in stable condition with fair prognosis.
Count II of plaintiff's amended complaint alleges that, "[d]efendant
Officers John Doe and Richard Roe are parties to a contract with
defendant City of Chicago whereby said City has agreed to indemnify and
hold said individuals harmless for all civil rights violation judgments
arising out of their employment with said City of Chicago, whether for
compensatory or punitive damages." Amended Complaint, Count II, 1118.
Plaintiff also alleges that, "[p]ursuant to the Illinois Municipal Code,
Illinois Revised Statute, ch. 85, ¶ 9-102, the City of Chicago is
obliged to pay any judgment or settlement for tort, including
42 U.S.C. § 1983 violations and 42 U.S.C. § 1981 violations, as
defendant Officers John Doe and Richard Roe may be liable for arising out
of their employment with said City." Id. at ¶ 19. Plaintiff therefore
claims that the City of Chicago has waived any defense it may have under
Monell v. New York City Department of Social Services, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1977), for the violations of constitutional
rights by its agents and employees.
Count III of plaintiff's amended complaint is brought pursuant to the
doctrine of pendent jurisdiction and alleges that "the conduct by the
individually named defendants and the defendant City of Chicago
constituted an assault and battery, as it placed plaintiff in threat of
imminent touching and did constitute an unpermitted touching within the
meaning of the common law of Illinois." Amended Complaint, Count III,
In 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), the Supreme Court
held that municipalities and other local government entities are
"persons" subject to liability under 42 U.S.C. § 1983 where the
constitutional deprivation suffered by the plaintiff can be causally
linked to a government "policy" or "custom." In City of Oklahoma City v.
Tuttle, ___ U.S. ___; 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), the Supreme
Court held that "[p]roof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a
municipal policymaker." Id. 105 S.Ct. at 2436. Similarly, the Seventh
Circuit in Strauss v. City of Chicago, 760 F.2d 765 (1985), has defined
what must be pled by a plaintiff bringing suit pursuant to
42 U.S.C. § 1983. The plaintiff in Strauss was the subject of an
unlawful arrest and recipient of blows to the face. The court held that
"[t]he existence of a policy that caused a plaintiff's injury is an
essential part of Section 1983 liability, so that some fact indicating
the existence of some such policy must be pled." id. at 768.
In this case, Brown argues that Kolar v. County of Sangamon of the
State of Illinois, 756 F.2d 564 (1985), was the death knell of Monell
immunity for municipalities in Illinois. In Kolar the plaintiff brought
suit against the County of Sangamon to enforce a judgment rendered
against the Sheriff of Sangamon County pursuant to Ill.Rev.Stat., ch.
85, § 9-102 (1983). That statute provides:
A local public entity is empowered and directed to pay
any tort judgment or settlement for which it or an
employee Cite as 612 F. Supp. 1137 (N.D.Ill. 1985)
while acting in the scope of his employment is liable
in the manner provided in this article.
Ill.Rev.Stat., ch. 85, § 9-102 (1983). That court found under the
statute the County of Sangamon was required to pay the judgment rendered
against the Sheriff of Sangamon County. Kolar, however, simply interprets
an Illinois statute, and does not sound the "death knell" of Monell in
Illinois. Monell remains the leading case defining municipal liability.
See City of Oklahoma City v. Tuttle, ___ U.S. ___, 105 S.Ct. 2427, 85
L.Ed.2d 791 (1985). Brown has not pled any facts which would suggest that
the City of Chicago has a custom or policy which caused the deprivation
of his constitutional rights. Therefore, defendants' motion to dismiss
Count II of the amended complaint is granted.
Since the plaintiff's federal claim against the City of Chicago in
Count II is dismissed before trial, the state claim alleged in Count III
against the City of Chicago is dismissed without prejudice for lack of
pendent jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 16-17, 96 S.Ct.
2413, 2421, 49 L.Ed.2d 276 (1976); Moore v. The Marketplace ...