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HALL v. SANCHEZ

March 16, 1989

TIMOTHY HALL, Plaintiff,
v.
DANIEL SANCHEZ, Defendant



The opinion of the court was delivered by: DUFF

 HONORABLE BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Plaintiff Timothy Hall has sued defendant Daniel Sanchez, a City of Chicago ("City") police officer, under 42 U.S.C. ┬ž 1983 and Illinois common law for allegedly shooting him at point blank range while plaintiff was panhandling on Belmont Avenue in Chicago, Illinois. Defendant answered the federal claim, but moved for dismissal of the two state law claims on the grounds that plaintiff failed to give notice of his claims within one year as required by the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("the Tort Immunity Act"), Ill.Rev.Stat. ch. 85, paras. 8-102, 8-103. *fn1" For the reasons set forth below, the motion is denied.

 I.

 Plaintiff alleges that the incident at issue here occurred on October 23, 1986. According to the complaint, plaintiff was panhandling when he came across defendant. The complaint does not say how defendant was dressed, but it does allege that he was "a duly appointed and acting police officer in the City of Chicago."

 When plaintiff asked defendant for spare change, defendant became enraged, grabbing plaintiff and placing him in a choke hold. Plaintiff pulled away and attempted to defend himself by assuming a karate stance. At this point, defendant pulled out a gun and identified himself as a Chicago police officer. Plaintiff began to put his hands over his head, but defendant fired his weapon, hitting plaintiff in the chest.

 In Count I, plaintiff alleges that defendant violated his rights under the Fourth and Fourteenth Amendments of the federal Constitution; in Count II, plaintiff alleges that defendant's acts were negligent; in Count III, that they constituted an assault and battery.

 II.

 Defendant has moved to dismiss Counts II and III on the grounds that plaintiff failed to give the City notice of his claims within one year of the date of the incident. Paragraph 8-102 of the Illinois Tort Immunity Act provides that:

 
Within 1 year from the date that the injury or cause of action . . . was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting within the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whose employee the action is contemplated a written statement [describing the incident and the nature of the alleged injury]. *fn2"

 Paragraph 8-103 provides that if the notice required by para. 8-102 is not served:

 
Any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom the cause of action accrued shall be forever barred from further suing.

 Plaintiff did not allege in his complaint that he gave the required notice to defendant or the City, and concedes in his briefs that he did not do so. Nevertheless, plaintiff maintains that dismissal at the pleading stage is inappropriate because paras. 8-102 and 8-103 apply only to acts committed by a government employee "while acting within the scope of his employment as such employee." According to plaintiff, although the complaint alleges that at the time of the incident defendant was acting under color of state law and was "a duly appointed and acting police officer in the City of Chicago," these allegations do not necessarily mean that defendant was acting within the scope of his employment when he fired his weapon.

 Defendant does not dispute that Rule 8(e)(2) of the Federal Rules of Civil Procedure would permit plaintiff to set forth inconsistent allegations in his complaint, so that plaintiff could have alleged in Count I that defendant's acts were within the scope of his employment, but then alleged in Counts II and III that they ...


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