MEMORANDUM AND ORDER
This matter is before the Court on defendants' Motion to
Dismiss in Part and for Partial Summary Judgment. On April 17,
1986 this Court granted in part and denied in part defendants'
motion to dismiss plaintiffs' initial complaint. Prior to the
Court's ruling on April 17, plaintiffs filed their first
amended complaint, which defendants now move to dismiss. The
Court then issued an Order, which stated that its rulings on
the initial complaint were applicable to the amended
complaint, and which also allowed defendants to file another
motion "as to any part of the amended complaint that raises
new issues." The primary purpose of entering that Order was to
inform defendants that they could not object, in a later
motion to dismiss, to any matters already ruled on by this
Plaintiffs argue that defendants have waived the defenses
they now raise since those defenses were available, but were
not asserted, in defendants' first motion to dismiss. The
Court first notes that defendants raised the defense of
failure to state a claim in their original motion to dismiss,
although the particular issues they now raise, with respect to
that defense, were not asserted in their original motion. In
any event, the defenses raised in defendants' pending motion
are asserted pursuant to Rule 12(b)(6), and are not waiveable.
See Fed.R.Civ.P. 12(h)(1) & (2). Although the proper procedure
for raising the defenses now at issue is in a motion for
judgment on the pleadings, "since the objection [of failure to
state a claim] is so basic and is not waived, the Court might
properly entertain the second motion [to dismiss] if convinced
that it is not interposed for delay and that the disposition of
the case on the merits can be expedited by so doing." 2A
Moore's Federal Practice ¶ 12.22 at 12-192. In the instant
case, the Court finds that defendants' motion is not interposed
for delay and that disposition of the case will be expedited by
reaching the merits of defendants' motion. The specific issues,
therefore, are addressed below.
This case involves the death of Michael Strandell, who
committed suicide while confined at the Jackson County Jail on
March 17, 1984. The facts of the case are fully set forth in
this Court's prior opinion and will not be repeated here.
See Strandell v. Jackson County, Illinois, 634 F. Supp. 824
I. Liability Of Jackson County
Defendants request this Court to reconsider its earlier
ruling that plaintiffs have stated a claim for relief against
Jackson County under 42 U.S.C. § 1983. Municipal liability may
only be imposed for unconstitutional actions that are inflicted
pursuant to a governmental "policy or custom." Monell v. New
York City Department of Social Services, 436 U.S. 658, 694, 98
S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Defendants argue that
Jackson County's liability is premised upon allegations of
inadequate staffing, overcrowding, inadequate training, and
failure to adopt procedures for the screening and treatment of
intoxicated and suicidal pretrial detainees. Such allegations,
defendants contend, constitute "negative" policies, and as
such, are insufficient to support a Monell claim of
governmental liability. Defendants cite City of Oklahoma City
v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)
in support of their argument. Defendants also note that the
United States Supreme Court has granted a writ of certiorari to
determine whether "negative" policies state a claim against a
municipality under section 1983. See City of Springfield v.
Kibbe, cert. granted, ___ U.S. ___, 106 S.Ct. 1374, 89 L.Ed.2d
In the plurality opinion in Tuttle, the Supreme Court stated:
[T]he word "policy" generally implies a course of
action consciously chosen from among various
alternatives; it is therefore difficult in one
sense even to accept the submission that someone
pursues a "policy" of "inadequate training,"
unless evidence be adduced which proves that the
inadequacies resulted from conscious choice
— that is, proof that the policymakers
deliberately chose a training program which would
Tuttle, 105 S.Ct. at 2436. In a more recent decision, the
Supreme Court also suggested that the word policy implies "a
deliberate choice to follow a course of action. . . ." Pembauer
v. City of Cinncinnati, ___ U.S. ___, 106 S.Ct. 1292, 1299, 89
L.Ed.2d 452 (1986).
In the present case, however, plaintiffs allege, for
example, that defendants "have refused to alter the in-take
and processing system for intoxicated pre-trial detainees,"
and "have refused to establish a detoxification unit . . . in
which to treat and house intoxicated pre-trial detainees"
despite recommendations by architects and jail consultants
that such arrangements be established, and despite the history
of similar suicides and suicide attempts at the jail.
(Plaintiffs' Complaint, ¶¶ 41-49). Plaintiffs, in effect,
allege that defendants were aware of the need to improve the
operation of the jail, but nevertheless deliberately chose to
operate the jail in a manner that endangered the health and
safety of pretrial detainees. Plaintiffs have, therefore,
adequately alleged a "policy" as defined by the Supreme Court
in Tuttle and Pembauer, and their allegations are thus
sufficient to withstand defendants' motion to dismiss. See also
Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985)
(conscious decision by city officials not to increase jail
staff, when officials knew that failure to do so would impair
the delivery of proper medical care to detainees, constituted a
"policy" for purposes of establishing municipal liability).
Additionally, as noted by plaintiffs, "local
governments . . . may be sued for constitutional deprivations
visited pursuant to governmental `custom' even though such a
custom has not received formal approval through the body's
official decision-making channels." Monell, 436 U.S. at 690-91,
98 S.Ct. at 2036. Thus, "[a] § 1983 plaintiff . . . may be able
to recover from a municipality without adducing evidence of an
affirmative decision by policymakers if able to prove that the
challenged action was pursuant to a state `custom or usage.'"
Pembauer, 106 S.Ct. at 1299 n. 10 (emphasis added). See also
Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986)
(longstanding practice of maintaining inadequate jail
facilities constituted a city custom or usage). Plaintiffs
allege that Jackson County's policies and customs subjected the
decedent to a deprivation of his constitutional rights. Under
Monell and Pembauer, such allegations are sufficient to state a
claim against the County.
The Court further notes that in several post-Tuttle decisions
also involving jail house conditions, deaths and suicides,
other courts have sustained claims against municipalities based
on allegations very similar to those in the present case. See,
e.g., Partridge v. Two Unknown Police Officers of the City of
Houston, 791 F.2d 1182 (5th Cir. 1986); Anela v. City of
Wildwood, 790 F.2d 1063 (3d Cir. 1986); Anderson v. City of
Atlanta, 778 F.2d 678 (11th Cir. 1985); Garcia v. Salt Lake
County, 768 F.2d 303 (10th Cir. 1985). Therefore, for the
reasons stated above, defendants' motion for reconsideration as
to Jackson County's liability is denied.
II. Liberty Interest
Defendants also request this Court to reconsider its earlier
ruling that the mandatory language of the Illinois County Jail
Standards creates a protected liberty interest in an
expectation of certain minimal standards and treatment. In
support of its request, defendants contend that 1) the Jackson
County Jail was not required to be in compliance with the
to the physical nature of the jail until January 1, 1986; 2)
Illinois case law holds that the jail standards create no duty
on the part of the jailors to comply with those standards; and
3) since plaintiffs cannot, under state law, seek injunctive
relief to enforce compliance with the Illinois County Jail
Standards, they cannot establish any "claim of entitlement"
under state law.
The Illinois County Jail Standards provide, in section 8-8:
Compliance: All requirements of a physical nature
shall be complied with by the following dates:
(A) Jails built in 1950 or before shall be in
compliance by January 1, 1986.
Plaintiffs allege in their complaint that the Jackson County
Jail was built in 1926, but have failed to address defendants'
argument that the jail standards regulating the physical
condition of the jail were inapplicable at the time Michael
Strandell died. Since defendants were given until January,
1986 to comply with the standards regarding physical
conditions, and since Michael Strandell's death occurred on
March 17, 1984, the Court agrees with defendants that no
liberty interest may be premised on those standards. As noted
in Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982), no liberty
interest is created where prison officials are given discretion
under state law to act or not act. Id. at 1100. "The existence
of such discretion `preclude[s] the implication of a liberty
interest deserving of due process protection.'" Id. (citations
Defendants contend that even those standards not governing
physical requirements fail to give rise to a liberty interest.
(The Court previously held that the jail standards created a
liberty interest in an expectation of treatment that protects
the safety, health and well-being of pretrial detainees.
See Strandell, 634 F. Supp. at 828-29). The Court disagrees with
defendants' assertion. Dezort v. Village of Hinsdale, 35 Ill. App.3d 703,
342 N.E.2d 468 (1976), a case cited by defendants
in support of their claim that the jail standards create no
entitlement to have those standards followed, was concerned
with the legal duty owed by jailors in a negligence case.
Dezort is simply irrelevant to the question of whether a
protectable liberty interest has been established.
Likewise, the Court disagrees with defendants' contention
that because an individual inmate cannot, under state law,
demand compliance with the jail standards, there is no "claim
of entitlement" to have those standards followed. (Under
Illinois law, the State Department of Corrections is given the
right to enforce compliance with the jail standards.)
Defendants cite no authority for their proposition that "[i]n
order to assert a claim of entitlement to compliance with the
Jail Standards, it is necessary to analyze whether Illinois
law recognizes an individual inmate's right to demand
compliance with those standards." (Defendants' Reply
Memorandum, p. 11). As noted by plaintiffs, the determination
of whether a liberty interest exists is not dependent upon the
"intricacies of state law enforcement mechanisms."
(Plaintiffs' Sur-Reply, p. 11).
Therefore, defendants' motion for reconsideration is granted
only insofar as the Court holds that Michael Strandell had no
liberty interest in an expectation of certain minimal
standards for the physical condition of the jail.
III. Probable Cause Determination
In their complaint, plaintiffs allege that defendants
arrested plaintiff without a warrant and without probable
cause. Plaintiffs further allege that defendants' failure to
bring Michael Strandell before a magistrate for a probable
cause hearing violated his fourth and fourteenth amendment
rights. The complaint states that Strandell was brought to the
courthouse at approximately 5:30 a.m., that he was
subsequently arrested, and that he died sometime after noon on
the same day. Since the exact time of Strandell's arrest is
not clear, it is also not clear exactly how long he was
detained following the arrest. Nonetheless,
defendants appear to agree that the detention was at least for
a "few hours."
In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d
54 (1975), the Court held that "the Fourth Amendment requires a
judicial determination of probable cause as a prerequisite to
extended restraint of liberty following arrest." Id. at 114, 95
S.Ct. at 863. Defendants contend, however, that since Strandell
was detained for only a "few hours," the failure to provide a
probable cause hearing does not rise to the level of a
constitutional violation. Defendants cite Rodgers v. Lincoln
Towing Service, Inc., 771 F.2d 194 (7th Cir. 1985) in support
of their argument. In Rodgers, the court held that a 10 1/2
hour detention following arrest did not violate the
Constitution. Id. at 198-99. The arrest in Rodgers, however,
was based on probable cause and the alleged constitutional
violation was a procedural due process violation. The Court
specifically noted that had plaintiff initially been arrested
without probable cause, the substantive constitutional right to
be free from unreasonable searches and seizures would have been
implicated. Id. at 198. The Court emphasized that because the
case involved a procedural due process violation and because
the 10 1/2 hour detention was caused only be defendants'
random, negligent actions, the availability of adequate state
tort remedies satisfied constitutional requirements of due
process. Id. at 198-99.
In the present case, plaintiffs allege that Michael
Strandell was arrested without probable cause. Furthermore,
there is no indication, at this stage, that failure to bring
Strandell before a Magistrate for a probable cause hearing
resulted solely from defendants' negligence. The Seventh
Circuit's decision in Rodgers is thus easily distinguishable
from the facts of the present case.
A case more analogous to the instant case is Moore v.
Marketplace, 754 F.2d 1336 (7th Cir. 1985). In Moore,
plaintiffs were subjected to warrantless arrests on minor
misdemeanor charges and were then detained in jail for four
hours without being afforded a probable cause hearing. The
court held that plaintiffs had sufficiently alleged violations
of the fourth and fourteenth amendments. Id. at 1350-51. In so
holding, the court stated that "detention must be justified,
especially where, as in this case, there has been no
independent appraisal of probable cause to arrest prior to the
detention; if detention is not justified, it amounts to
punishment prior to conviction." Id. at 1350. The court further
noted that the reasonableness of the period of detention should
be determined by the jury. "If no reasonable excuse [for the
detention] is presented, or that excuse is legitimately
disputed, the question of liability is to be decided by the
jury." Id. at 1351-52. See also Gramenos v. Jewel
Companies, 797 F.2d 432 (7th Cir. 1986). Under Moore, the Court
finds that plaintiffs have sufficiently pled facts to support
their claim that Michael Strandell's fourth and fourteenth
amendment rights were violated when defendants detained him
without providing a probable cause hearing.*fn1
Defendants contend that even if the Court finds that
plaintiffs have sufficiently alleged violations of the fourth
and fourteenth amendments, plaintiffs' claims based upon
unlawful detention do not survive Michael Strandell's death.
Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d
554 (1978), holds that courts must look to state law in
determining whether section 1983 claims survive. Id. at 588-90,
98 S.Ct. at 1994-95. The Court in Robertson also held that
application of the state survivorship statute must not have an
"independent adverse effect on the policies underlying § 1983."
Id. at 594, 98 S.Ct. at 1997. According to the Court,
"[t]he policies underlying § 1983 include compensation of
persons injured by deprivation of federal rights and prevention
of abuses of power by those acting under color of state law."
Id. at 591, 98 S.Ct. at 1995.
Defendants argue that under Wilson v. Garcia, 471 U.S. 261,
105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), all section 1983 claims
should be characterized as actions for personal injuries.
Defendants reason that under Illinois law, personal injury
actions survive only if there are physical injuries, and that
because plaintiffs' claim premised upon denial of a probable
cause hearing involves no physical injury, the claim cannot
survive. Wilson, however, was concerned solely with the
question of how section 1983 claims should be characterized for
purposes of determining the appropriate statute of limitations.
This Court is not willing to extend Wilson's holding to the
question of whether section 1983 claims survive.
The Illinois Survival Statute provides, in pertinent part,
In addition to the actions which survive by the
common law, the following also survive: . . . .
actions to recover damages for an injury to the
person (except slander and libel), . . . .
actions against officers for misfeasance,
malfeasance, or nonfeasance of themselves or their
deputies. . . .
Ill.Rev.Stat. ch. 110 1/2, § 27-6 (emphasis added). In Beard v.
Robinson, 563 F.2d 331 (7th Cir. 1977), plaintiff filed suit as
administratix of the estate of decedent, who allegedly was
killed by police officers. The complaint alleged violations of
the fourth, fifth, eighth, ninth and fourteenth amendments. The
district court, in interpreting the Illinois Survival Statute,
held that the claims survived "only insofar as they sought
damages for the physical injuries [the decedent] suffered."
Id. at 332. The Seventh Circuit reversed and held that the
claims survived as claims "against officers for misfeasance,
malfeasance or nonfeasance of themselves or their deputies."
Id. at 333-34. Similarly, in another case involving a shooting
by police officers, the court held that the decedent's 1983
claims survived under the same provision of the Illinois
Survival Statute, even though the decedent died from causes
unrelated to the shooting. See Larson v. Wind, 542 F. Supp. 25,
26 (N.D.Ill. 1982). Under Beard, this Court concludes that
plaintiffs' claims based upon unlawful detention also survive
as claims against officers for misfeasance, malfeasance or
nonfeasance. Defendants' motion to dismiss these claims is
IV. Search of Michael Strandell's Residence
Plaintiffs allege that Strandell's constitutional rights
were violated by a search of his residence after his death.
Defendants allege that this claim should be dismissed since
Strandell retained no constitutional rights after his death.
The Court agrees.
Although plaintiffs contend that under Bell v. City of
Milwaukee, 746 F.2d 1205 (7th Cir. 1984), the estate is a
"person" and is entitled to contest the illegal search, Bell
did not in fact resolve the question of whether an estate might
be a person under section 1983. Rather, Bell was concerned with
the claims of survivors, not claims of the estate. Id. at 1264.
Even assuming arguendo that the estate is a "person,"
plaintiffs do not allege that the rights of the estate were
violated, but only that the search "subjected the decedent to a
deprivation of his constitutional rights." (Plaintiffs'
Complaint, ¶ 103).
Additionally, "[f]ourth amendment rights are personal
rights. . . ." Brown v. United States, 411 U.S. 223, 230, 93
S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973), and are violated only
when one has a "legitimate expectation of privacy" in the
premises that are searched. United States v. Payner,
447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980). Although
plaintiffs contend that Strandell's parents had proprietary
rights to his residence, no such allegations are set forth in
Plaintiffs contend that the illegal search is "part and
parcel of the alleged `Monell' policy of Jackson County to
allow, acquiesce in, and fail to stop widespread violations of
Fourth Amendment rights." (Plaintiffs' Sur-Reply, p. 17). While
the complaint alleges that Jackson County has a policy of
subjecting detainees to illegal strip searches, there are no
factual allegations to support a claim that illegal searches of
premises are part of any established "policy or custom." The
complaint sets forth only one instance where premises were
allegedly illegally searched. Plaintiffs' illegal search claim
is therefore not actionable even under a Monell "policy
theory." Accordingly, plaintiffs' claim that Strandell's
residence was illegally searched is hereby dismissed.
V. Punitive Damages
Defendants seek to dismiss all claims for punitive damages
that are brought against defendants in their official
capacities. In Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83
L.Ed.2d 878 (1985), the court held that "a judgment against a
public servant `in his official capacity' imposes liability on
the entity that he represents." Id. 105 S.Ct. at 878. And in
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct.
2748, 69 L.Ed.2d 616 (1981), the court held that punitive
damages may not be recovered from a municipality in a section
1983 action. Defendants argue that since the suit against
defendants in their official capacities actually asserts a
claim against the county, plaintiffs likewise may not recover
punitive damages from the defendants in their official
Plaintiffs cite Kolar v. County of Sangamon, 756 F.2d 564
(7th Cir. 1985) in opposition. In Kolar, plaintiff obtained a
judgment, in a section 1983 action, against the Sheriff of
Sangamon County, and pursuant to an Illinois statute, sought to
recover the judgment from the County. The Illinois statute in
question provides, in relevant part, as follows:
A local public entity is empowered and directed
to pay any tort judgment or settlement for which
it or an employee while acting in the scope of
his employment is liable in the manner provided
in this Article.
Ill.Rev.Stat. ch. 85, § 9-102. After stating the general rule
that municipalities are immune from punitive damages in section
1983 actions, the Kolar court also noted that "a local
government entity's `immunity from . . . punitive damages may
be waived by federal or state law.'" Id. at 567. The court then
held that the Illinois statute quoted above waived the County's
immunity from section 1983 punitive damage awards.
Kolar, however, appears to hold that the County waived its
immunity from punitive damages only by virtue of an "indemnity"
provision in section 9-102. Thus, the holding in Kolar would be
limited to the situation where a county would be required, by
virtue of section 9-102, to pay a judgment that had already
been entered against an employee while acting within the scope
of his employment. This interpretation of Kolar is supported by
the following excerpt, in which the Court compares the Illinois
statute in question to a Wisconsin indemnity statute:
As a general rule, local public entities are
immune from punitive damage awards in civil
rights actions. It is clear, however, that a
local government entity's "immunity from
liability, including liability for punitive
damages, may be waived by federal or state law."
This Court held in Bell that indemnity afforded
government employees under Wisconsin law waived the
City of Milwaukee's immunity with regard to suits
by City employees seeking indemnification for
punitive damage awards obtained against them under
42 U.S.C. § 1985. Section 9-102 similarly waives
the defendant County's immunity from Section 1983
punitive damage awards. The failure of Section
9-102 expressly to authorize recovery of a punitive
damage award from a local public entity in Illinois
does not bar such a remedy. In Bell we ruled that
the Wisconsin indemnity statute, which applied
generally to all
"judgments," authorized indemnity suits for
punitive damage awards against a local public
entity. Section 9-102 also fails to distinguish
between compensatory and punitive damages, and
where, as in Bell and here, the local entity fails
to argue that the statute should be read so
narrowly, local entity immunity is waived as to
both types of damages.
Id. (emphasis added) (citations omitted). Since the holding in
Kolar appears to be limited to the factual situation described
above, this Court concludes that under the Supreme Court's
decisions in Brandon and Newport, all claims for punitive
damages against defendants in their official capacities must be
dismissed. See also McCrimmon v. Kane County, 606 F. Supp. 216,
225 (N.D.Ill. 1985) (punitive damage claims against Sheriff and
state's attorney in their official capacities dismissed since
such claims were actually claims against the County).
VI. Survival of State Law Claims
Defendants contend that plaintiffs' state law claims for
false arrest, false imprisonment, invasion of privacy,
intentional infliction of emotional distress and negligent
infliction of emotional distress do not survive under the
Illinois Survival Act. The Court agrees.
The Survival Act provides, "In addition to the actions which
survive by the common law, the following also survive . . .
actions to recover damages for an injury to the person (except
slander and libel). . . . Ill. Rev.Stat. ch. 110 1/2, § 27-6.
"Illinois courts have consistently held that `[this provision]
mean[s] damages of a physical character.'" Jarvis v. Stone,
517 F. Supp. 1173, 1176 (N.D.Ill. 1981). Additionally, the courts
have specifically held that certain non-physical torts do not
survive. See Jarvis, 517 F. Supp. at 1176 (intentional
infliction of emotional distress); Maritote v. Desilu
Productions, Inc., 230 F. Supp. 721, 725 (N.D.Ill. 1964),
aff'd, 345 F.2d 418 (7th Cir. 1965) (right to privacy);
Pinkerton v. Gilbert, 22 Ill. App. 568 (1st Dist. 1897) (false
Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977), cited by
plaintiffs, is inapplicable since it did not address the issue
of survival of state law claims. Furthermore, the state law
claims at issue here are specific tort claims and do not
survive as claims for the malfeasance, misfeasance or
nonfeasance of officers. Therefore, plaintiffs' claims in Count
IV for false arrest, false imprisonment, invasion of privacy,
intentional infliction of emotional distress and negligent
infliction of emotional distress are dismissed.
VII. Proper Parties
Defendants move to dismiss Marge and Alex Strandell in their
individual and parental capacities in Count I (section 1983),
Count III (wrongful death) and Count IV (survival statute).
The proper party plaintiff in a section 1983 case is
determined by reference to state law. Cunningham v. Ray,
648 F.2d 1185, 1186 (8th Cir. 1981). Illinois law provides that the
proper party plaintiff in wrongful death and survival actions
is the personal representative of the decedent's estate. See,
e.g., Rodgers v. Consolidated R.R. Corp., 136 Ill. App.3d 191,
90 Ill.Dec. 797, 482 N.E.2d 1080 (1985); McGill v. Lazzaro,
92 Ill. App.3d 393, 48 Ill.Dec. 134, 416 N.E.2d 29 (1980).
Therefore, the Court grants defendants' motion to dismiss Alex
and Marge Strandell in their individual and parental capacities
in Counts I, III and IV.
VIII. Family Expense Act
Defendants move to dismiss Count V, in which plaintiffs seek
recovery of funeral expenses for the decedent. Defendants
contend that 1) under the Family Expense Act, Ill.Rev.Stat.
ch. 40, § 1015, parents are not liable for the funeral expenses
of an adult child; and 2) in the absence of such liability,
parents have no claim for the recovery of expenses.
In Ragan v. Protko, 66 Ill. App.3d 257, 22 Ill.Dec. 937,
383 N.E.2d 745 (1978), the court, in construing the Family Expense
Act, held that "in order for a parent to recover for his
child's medical and funeral expenses, he must be legally liable
for the charges. . . ." Id. 22 Ill.Dec. at 940, 383 N.E.2d at
This holding has been cited with approval in recent Illinois
cases. See, e.g., Tully v. Cuddy, 139 Ill. App. 697, 94
Ill.Dec. 218, 219-20, 487 N.E.2d 1095, 1096-97 (1985); Rodgers
v. Consolidated R.R. Corp., 136 Ill. App.3d 191, 90 Ill.Dec.
797, 801, 482 N.E.2d 1080, 1084 (1985). Since Michael Strandell
was twenty-two years old at the time of his death (Plaintiff's
Complaint, ¶ 10), his parents were not legally responsible for
his funeral expenses, and they may not recover those expenses
under the Family Expense Act.
As plaintiffs note, however, Count V includes a claim by the
estate of decedent. Illinois cases have recognized that an
estate is legally obligated to pay the decedent's funeral
expenses, Maras v. Bertholdt, 126 Ill. App.3d 876, 81 Ill.Dec.
728, 734, 467 N.E.2d 599, 604 (1984), and have further held
that administrators of the estate may recover those expenses
from the tortfeasor. See, e.g., Chidester v. Cagwin, 76 Ill. App.2d 477,
222 N.E.2d 274, 277-78 (1966); Eggimann v. Wise,
56 Ill. App.2d 385, 206 N.E.2d 472, 476 (1964). Therefore,
although Alex and Marge Strandell as parents cannot recover any
funeral expenses, Alex Strandell as administrator can maintain
an action to recover any expenses incurred by the estate.
IX. Tort Immunity Act, Section 2-201
Defendants contend that the state law claims against
Kilquist and Truitt are premised solely on their roles as
policymakers, and that under Ill.Rev.Stat. ch. 85, § 2-201,
these defendants are immune from state-law tort liability.
Section 2-201 provides that "a public employee serving in a
position involving the determination of policy or the exercise
of discretion is not liable for an injury resulting from his
act or omission in determining policy when acting in the
exercise of such discretion even though abused." In a recent
Illinois case, however, the court held that such immunity does
not extend to a public employee's willful and wanton acts.
Barth by Barth v. Bd of Educ., 141 Ill. App.3d 266, 95 Ill.Dec.
604, 608-09, 490 N.E.2d 77, 81-82 (1986).
In Counts III and IV of the present case, plaintiffs allege
willful and wanton acts by defendants. At this stage,
therefore, the Court cannot find that defendants Kilquist and
Truitt are immune from liability under the Tort Immunity Act.
X. Tort Immunity Act, Section 4-103
Defendants also claim immunity under Ill.Rev.Stat. ch. 85,
§ 4-103. That statute provides immunity for a public employee's
"failure to provide sufficient equipment, personnel or
facilities" in a jail. Defendants admit, however, that they are
covered by a policy of insurance in the amount of $500,000. The
law is clear that "[t]ort immunity under the Act may be waived
by a local public entity to the extent insurance is
procured. . . ." Melbourne v. City of Chicago, 76 Ill. App.3d 595,
31 Ill. Dec. 914, 924, 394 N.E.2d 1291, 1301 (1979). See
also Hintz v. Jamison, 743 F.2d 535, 537 (7th Cir. 1984);
Bollinger v. Schneider, 64 Ill. App.3d 758, 21 Ill.Dec. 522,
381 N.E.2d 849 (1978).
Defendants recognize that immunity is waived to the extent
of insurance coverage, but have requested the Court to enter
partial summary judgment on all state law claims in excess of
$500,000. Rule 56, however, "does not authorize the entry of
judgment on part of a claim or the granting of partial relief."
Wright, Miller & Kane, Federal Practice and Procedure, § 2737
at 457 (emphasis added). See also Commonwealth Ins. Co. v. O.
Henry Tent & Awning Co., 266 F.2d 200 (7th Cir. 1959); Oberweis
Dairy, Inc. v. Associated Milk Producers, Inc., 553 F. Supp. 962
(N.D.Ill. 1982); Metal Coating Corp. v. Baker Manufacturing
Co., 227 F. Supp. 529 (W.D.Wis. 1964). Defendants' motion for
partial summary judgment is therefore denied.
For the foregoing reasons, the Court hereby enters the
1. Defendants' motion for reconsideration is
GRANTED only insofar as the Court holds that
Michael Strandell had no liberty interest in an
expectation of certain minimal standards for the
physical condition of the jail;
2. Defendants' motion to dismiss plaintiffs'
claim that Michael Strandell's residence was
illegally searched is GRANTED;
3. Defendants' motion to dismiss all claims for
punitive damages against defendants in their
official capacities is GRANTED;
4. Defendants' motion to dismiss plaintiffs'
claims in Count IV for false arrest, false
imprisonment, invasion of privacy, intentional
infliction of emotional distress and negligent
infliction of emotional distress is GRANTED;
5. Defendants' motion to dismiss Alex and Marge
Strandell in their individual and parental
capacities in Counts I, III and IV is GRANTED;
6. Defendants' motion to dismiss the claim of
Alex and Marge Strandell (as individuals and
parents) for recovery of funeral expenses is
The remainder of defendants' motion to dismiss is DENIED.