United States District Court, Northern District of Illinois, E.D
December 6, 1985
EMILY LOWERS, PLAINTIFF,
CITY OF STREATOR; DAVID KASCHAK, FORMER STREATOR POLICE CHIEF; LEE SEMBER, STREATOR POLICE SERGEANT; OFFICER EDWARDS, STREATOR POLICE OFFICER; JOE HARCAR, STREATOR POLICE DETECTIVE; OFFICER DODWELL, STREATOR POLICE DETECTIVE, DEFENDANTS.
The opinion of the court was delivered by: Leighton, District Judge.
This cause is before the court on defendants' motions to
dismiss. The granting of defendants' motions would be improper
unless the court determines that it appears beyond doubt that
plaintiff can prove no set of facts to support a claim which
entitles her to relief. Strauss v. City of Chicago, 760 F.2d 765,
767 (7th Cir. 1985). Further, when making that determination, all
the allegations in the complaint must be taken as true and
construed in a light most favorable to plaintiff. Greene v.
Finley, 749 F.2d 467, 468 (7th Cir. 1984).
On December 11, 1982, a man broke into plaintiff's home and
raped her. Plaintiff immediately reported the incident to the
police department of the defendant city. The defendant police
officers, Edwards and Kaschak, instructed her to go to the
hospital for tests. Thereafter, plaintiff returned to the police
station where she gave a statement of the incident, provided
defendants with a description of the rapist, and identified him
from police photographs. Defendants, officers Sember and Dodwell,
then accompanied her to her home to investigate the scene of the
crime where defendant Dodwell told her that he had seen
situations similar to this one before and warned that the rapist
would return and repeat the crime.
On December 15, 1982, on instructions from defendant Sember,
plaintiff submitted to a polygraph examination regarding the
rape; that examination revealed that she was telling the truth.
Thereafter, approximately once a week, plaintiff spoke to
defendants to inquire about the progress of their investigation
and to state her willingness to identify the rapist from a
lineup. Defendants took no action in the matter: they did not
write police reports; they did not question or take into custody
the man identified; and they did not process the evidence
collected. On May 26, 1983, the same man broke into the
plaintiff's home and raped her again. This time, on receiving
plaintiff's statement, defendants arrested the man; he
subsequently pled guilty to both rapes. Based on these facts,
plaintiff brought this 42 U.S.C. § 1983 action.
In support of their motions, defendants first argue that
plaintiff's § 1983 claim, filed more than two years after the
challenged action, is time barred. This court has previously held
that the Illinois
limitations statute to be applied in § 1983 actions is
Ill.Rev.Stat. ch. 110, ¶ 13-205 (1983), which provides for a
five-year limitation period. Bigley v. Kodatt, 87-5590 (N.D.Ill.
Sept. 20, 1985) (citing Shorters v. City of Chicago, 617 F. Supp. 661
(N.D.Ill. 1985)). Plaintiff's suit was filed well within that
five-year period and is therefore timely.
Defendant Dodwell, in a separate motion, argues that plaintiff
has failed to state a cause of action upon which relief can be
granted because she does not allege the existence of a
constitutional right and a corresponding duty on defendant's part
to protect that right.
Section 1983 imposes liability on anyone who under color of
state law "subjects . . . any citizen . . . or other
person . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution. . . ." 42 U.S.C. § 1983.
Accordingly, the statute applies only where a party is deprived
of a constitutional right. Plaintiff's § 1983 claim alleges that
defendants' actions, in failing to protect her after the first
rape, deprived her of Fourteenth Amendment rights to due process
and equal protection.
Generally, there is no constitutional right, either in the due
process clause or the equal protection clause, to be protected
against being attacked or raped by a member of the general
public. And consequently there is no corresponding duty placed on
the state and its officers requiring them to act when members of
the general public are in danger. Bowers v. De Vito,
686 F.2d 616, 618 (7th Cir. 1982). However, there are two recognized
exceptions to this general rule. The first is where the state has
created a custodial or other special relationship with the
plaintiff. Jackson v. Byrne, 738 F.2d 1443, 1447 (7th Cir. 1984).
In those situations, the state and its officers have a duty,
under the due process clause to provide those special individuals
with protection. Id. at 1447. The second exception is where the
state discriminates in providing protection to members of the
public; those situations "of course violate the equal protection
clause of the Fourteenth Amendment." Bowers, 686 F.2d at 618.
Taking the facts alleged as true, plaintiff comes within both
exceptions and therefore states a claim under § 1983.
The notion that the due process clause creates a duty to
protect and a corresponding right to be protected where a
"special relationship" exists between the state and an
individual, originated in the Supreme Court opinion of Martinez
v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481
(1980). There the Court, while affirming the dismissal of a suit
against the state parole board seeking damages for a death caused
by a parolee, noted that "the parole board was not aware that
appellant's decedent, as distinguished from the public at large,
faced any special danger." Id. at 285, 100 S.Ct. at 559. In this
regard, the court of appeals in this circuit has held that "a
right and corollary duty to basic protective services may arise
out of special relationships created or assumed by a municipality
in regard to particular people." Ellsworth v. City of Racine,
774 F.2d 182, 185 (7th Cir. 1985). The court has also recognized that
the contours of what constitutes such a special relationship are
"hazy and indistinct." Id. at 185.
Plaintiff alleges that defendants investigated the first rape
and warned her that the rapist would return to her home and
repeat the crime. These facts certainly made defendant aware that
plaintiff faced a special danger, as distinguished from the
public at large. This, coupled with defendants having knowledge
of the rapist's name immediately after the first rape, created a
special relationship between the parties and consequently
bestowed upon plaintiff the right to be protected. See Estate of
Bailey By Oare v. County of York, 768 F.2d 503, 510-11 (3d Cir.
1985); Jensen v. Conrad, 747 F.2d 185, 195 n. 11 (4th Cir. 1984).
As to the equal protection exception, plaintiff alleges that
defendants' failure to arrest the rapist and to continue the
investigation was a result of her being a woman. This allegation
is sufficient to state a claim under § 1983. Jackson v. City of
Joliet, 715 F.2d 1200, 1203 (7th
Cir. 1983); Jackson v. Byrne, 738 F.2d 1443, 1447 (7th Cir.
Finally, although the parties have not presented the issue, the
court notes that the complaint sufficiently alleges a policy of
the defendant city, to discourage the vigorous prosecution of
violent crimes against women, so as to state a § 1983 claim
against it. Monell v. New York City Department of Social Service,
436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978).
While this case is different from Monell, where the city had an
official policy embodied in a municipal regulation, the complaint
here alleges a sufficient pattern of activity over nearly a
six-month period to indicate a deliberate indifference on the
part of the defendant city. Thurman v. City of Torrington,
595 F. Supp. 1521, 1530 (D.Conn. 1984). This pattern of behavior is
sufficient to at least raise the inference of a policy on the
part of the city. Id. at 1530; Turpin v. Mailet, 619 F.2d 196,
201-02 (2d Cir. 1980).
Therefore, because plaintiff's complaint was timely filed and
sufficiently alleges facts to state a claim upon which relief can
be granted, the court denies defendants' motions to dismiss.
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