United States District Court, Northern District of Illinois, E.D
November 26, 1985
MICHAEL ZWARTON, ET AL., PLAINTIFFS,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Grady, District Judge.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983.
Plaintiffs claim that on December 7, 1984, the defendant
Graham, a Chicago detective, and other unknown Chicago police
officers, subjected them to "strip searches" and body searches,
"all without warrant and legal justification." The City of
Chicago is joined as a defendant on the basis of plaintiffs'
9. That the defendant City of Chicago, a Municipal
Corporation, did make it a practice, by and through
their police officers as agents, servants and
employees to strip search various parties from time
to time and to search parties from time to time
without warrants allowing same and have in the past
and most likely in the future will continue to make
these unreasonable strip searches and other searches
in violation of the laws heretofore set forth, and
the City of Chicago in the past have been enjoined
from continuing to strip search citizens who have
been arrested or as in this particular case, citizens
who are not under arrest in violation of the
injunction heretofore issued by this court and in
willful violation of the rights of its citizens.
Complaint, Count II, ¶ 9. Defendant City of Chicago has moved to
dismiss the claim against it for failure to allege the necessary
custom, policy or practice. Monell v. New York City Dept. of
Social Services, 436 U.S. 658
, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). Plaintiffs contend that the policy and practice
allegations of the complaint are sufficient to meet the Monell
test. We disagree. Plaintiffs have alleged only a single specific
incident, namely their own, and that is not enough to establish
a custom or policy. That the City "in the past has been enjoined
from continuing to strip search citizens" does not tend to show
that the practice persisted after the date of the injunction.
Paragraph 9, quoted above, is something of a grammatical puzzle,
but apparently plaintiffs are attempting to charge that the City
has been violating the injunction. Such a conclusory allegation
is insufficient, as is the allegation that the City "did make it
a practice" to commit the kinds of acts involved in plaintiffs'
own encounter with the police. Experience has shown that general
allegations of this kind can be made without adequate basis.
Municipalities have been put to great expense in defending
against such complaints only to be granted summary judgment at
close of discovery. The better and fairer practice is to require
plaintiffs to allege specific facts which show the existence of
a custom. Strauss v. City of Chicago, 760 F.2d 765
, 770 (7th Cir.
1985); Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194
(7th Cir. 1985). If they do not have those facts, they should not
join the City as a defendant. Rule 11 of the Federal Rules of
Civil Procedure provides that the signature of an attorney on a
pleading constitutes a certificate that he has read the pleading
and that "to the best of his knowledge, information, and belief
formed after reasonable inquiry, it is well grounded in fact and
is warranted by existing law. . . ." This requires that the
specific factual basis for municipal liability exist at the time
the municipality is joined in the action. There is no reason not
to state in the complaint what that factual basis is.
Discovery in a case against individual defendants may well turn
up evidence which will justify amending the complaint to join the
municipality. (Plaintiffs' investigation need not, of course, be
limited to formal discovery in a lawsuit; there is such a thing
as independent investigation prior to and independent of a
What particular allegations might satisfy Monell depends on the
facts of the case. What is necessary is a factual allegation
which, if proven, would support a finding that the conduct
complained of was in the "execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy. . . ."
Monell v. New York City Dep't of Social Services, 436 U.S. 658,
694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Obviously, there
is no exclusive formula. Plaintiff might be able to allege a
sufficient number of specific similar incidents to justify the
inference that the municipality had approved of the practice.
There could be statistical facts which strongly imply a policy or
custom. There could even be admissions by responsible officials
of the municipality. Conceivably, a single incident, the very one
complained of, could occur under circumstances warranting an
inference of official approval; but those circumstances would
have to be pleaded with particularity.
This action is dismissed as against the defendant City of
Chicago for failure to state a claim. Plaintiffs have leave to
amend their complaint to rejoin the City of Chicago as a
defendant if and when they are able to allege specific facts to
show that their injuries were the result of an official policy,
custom or practice.
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