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PERRIJEAN EAST v. CITY OF CHICAGO

July 18, 1989

PERRIJEAN EAST, individually and as administratrix of the estate of RAY EAST, deceased, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE.

 Perrijean East ("Perrijean") has sued the City of Chicago ("City"), City police officers Robert Skahill ("Skahill"), Kevin Rogers ("Rogers"), John Zalatoris ("Zalatoris"), Christopher Paluch ("Paluch") and Donald Washington ("Washington") and various other officers whose names Perrijean does not know. She sues both in her individual capacity and as administratrix of the estate of her deceased son, Ray East ("East"), asserting a variety of claims arising from his arrest and detention in September 1987:

 
2. Counts IV and V contain pendent claims for wrongful death and assault and battery.

 All named defendants have now moved under Fed. R. Civ. P. ("Rule") 12(b)(6) to dismiss the Second Amended Complaint (the "Complaint"). *fn2" For the reasons stated in this memorandum opinion and order, the motion is granted in part and denied in part.

 Facts3

 At 8 p.m. on September 23, 1987 Skahill, Zalatoris, Paluch, Rogers, Washington and several other City police officers, acting on a tip that a drug purchase was about to take place, raided an apartment at 4229 South Calumet Avenue in Chicago (para. 7). East and several others were then in one of the apartment's bedrooms. When he heard the officers approach, East placed a small packet of cocaine in his mouth (para. 8).

 After entering the apartment the officers ordered East and the other individuals into the hallway, forced them to place their hands on the wall and began to search them (para. 9). During the search an unnamed officer asked East, "Are you ready?" East did not respond (para. 10). When the same officer repeated the question, East swallowed the packet of cocaine he had been holding inside his mouth and asked, "Ready for what?" That produced the response "Ready to die, nigger," and the officer then struck East across his back with a club (para. 11).

 All the officers then continued to conduct a lengthy and abusive search of East (para. 12). After a "considerable" (though unspecified) amount of time, the officers took East and the others to the police wagon (id.). After they had spent some 30-45 minutes in the wagon, East and the others were driven to the Second District Police Station (id.).

 When they arrived at the station, East and several other arrestees were placed in an interrogation room with three police officers (para. 13). Around midnight East began displaying nervous and fidgety behavior (para. 14). He asked for water, and Skahill took him to the bathroom and then returned him to the interrogation room (id.).

 Once back in the interrogation room East began pacing and shouting "Sergeant, Sergeant, Lieutenant, Lieutenant." He then removed the top of a stand-up ashtray and began beating on the desk while repeating "Sergeant, Sergeant, Lieutenant" (para. 15). Skahill, Rogers and several unnamed officers ran into the interrogation room (para. 16). East ducked under the desk (id.), and the officers began pulling East out from there (para. 17). In the process the officers kicked East in the head and between the legs and hit him with a night stick -- all in an attempt to handcuff him (id.).

 East was then taken out of the interrogation room (para. 18). Two individuals who had been arrested with East told Skahill that East had ingested 1/16 gram of cocaine and that he needed medical attention (id.). Skahill ignored the warnings and responded that East "was just afraid to go to jail where his brother is" (id.).

 At about 1 a.m. fire department paramedics arrived at the station (para. 21). *fn5" They treated East in the parking lot (id.), then took him to Chicago Osteopathic Hospital, where he died at 2:20 a.m.

 Threshold Matters

 Two preliminary matters merit brief attention before this opinion turns to the parties' contentions. One will be resolved although the parties have not addressed it, while the other will not be resolved precisely because the parties have not addressed it.

 First, Perrijean's allegations against unidentified persons force this court to analyze claims against necessarily nonresponding parties -- one of the problems inherent in the use of "John Doe" defendants. Despite such problems, our Court of Appeals (drawing on Bivens ' tacit approval of such practice) has on more than one occasion allowed such pleading where the defendants are identifiable persons, though their identity is unknown at the time suit is filed, and where discovery procedures are likely to lead to their identification. Most recently Smith-Bey v. Hospital Administrator, 841 F.2d 751, 759 (7th Cir. 1988) spoke to such a situation:

 
The real problem with Smith-Bey's claim is his inability to specifically state the names of the correctional staff who were allegedly responsible for having him assaulted. This does raise questions as to the strength of his claim. The mere inability to state the individual defendants by name, however, does not warrant dismissal of a claim if the allegations in the complaint allow for the specific persons to be subsequently identified with reasonable certainty. See Chavis v. Rowe, 643 F.2d 1281, 1290 n. 9 (7th Cir.), cert. denied, 454 U.S. 907, 102 S. Ct. 415, 70 L. Ed. 2d 225 (1981); Maclin v. Paulson, 627 F.2d 83, 87-88 (7th Cir. 1980); cf. Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 390 n. 2, 91 S. Ct. 1999, 2001 n. 2, 29 L. Ed. 2d 619 (1971). Here, Smith-Bey's complaint does name the allegedly responsible persons by position and the complaint's factual allegations appear to allow for the specific persons to be identified with reasonable certainty. Accordingly, we reverse the district court's dismissal of this claim as frivolous under § 1915(d).

 At least for purposes of the present motion, then, the several unidentified defendants cannot be stricken simply because they are unnamed. Their status will be reviewed along with that of the named individual defendants. *fn6"

 Second, neither defendants' motion nor Perrijean's response has spoken at all to Count V. This Court should not have to do the parties' work for them. As this opinion's later discussion reflects, both sides' submissions on the issues raised by Counts I-IV are sketchy (though that must be laid principally at Perrijean's door), compelling extensive independent research by this Court. But forcing this Court to start from scratch on Count V is just too much. This opinion therefore expresses no view either way on that claim.

 Perrijean's Substantive Claims Count I: Section 1981

 Count I advances a Section 1981 claim against City and the individual officers. Section 1981 "protects against discrimination on the basis of race or alienage" ( Bell v. City of Milwaukee, 746 F.2d 1205, 1232 (7th Cir. 1984)) and is actionable only when there is:

 
1. An intent to discriminate ( Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 583 n. 16, 81 L. Ed. 2d 483, 104 S. Ct. 2576 (1984) and cases cited there)
 
2. involving one of the rights enumerated in the statute.

 Here defendants do not challenge the second of those elements, given the wealth of authority holding that physical abuse -- such as the beatings and lack of medical care alleged in the Complaint -- falls within Section 1981's ambit (see, e.g., Mendez v. Rutherford, 687 F. Supp. 412, 415-16 (N.D. Ill. 1988); Spriggs v. City of Chicago, 523 F. Supp. 138, 146-47 (N.D. Ill. 1981); see generally Bell, 746 F.2d at 1232, quoting Hall v. Pennsylvania State Police, 570 F.2d 86, 91 (3d Cir. 1978)). Instead, defendants attack the first element of the Section 1981 claim because of the claimed absence of allegations of intentional discrimination.

 1. Individual Defendants

 Minority Police Officers Association of South Bend v. City of South Bend, Indiana, 801 F.2d 964, 967 (7th Cir. 1986) typifies the frequent cautions from our Court of Appeals "that conclusory allegations of generalized racial bias do not establish discriminatory intent." Nor is it alone in delivering that message: For example, Albert v. Carovano, 824 F.2d 1333, 1341 (2d Cir.), modified on reh'g, 839 F.2d 871 (2d Cir. 1987), teaches that "naked assertions" of discrimination cannot suffice to establish a Section 1981 claim.

 Here the Complaint contains no direct allegations of intentional racial discrimination on the part of the named defendants. But it does advert to the outrageous "Ready to die, nigger" statement by an unnamed officer, who then clubbed East (paras. 10-11). Although none of the named defendants is said to have joined in either of those actions during the arrest, there is case law holding that an officer's failure to intervene in constitutionally violative conduct by a fellow officer may be independently actionable (see, e.g., this Court's opinion in Smallwood v. Renfro, 708 F. Supp. 182, 190 (N.D.Ill. 1989), discussing Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972) and Rascon v. Hardiman, 803 F.2d 269, 276-77 (7th Cir. 1986)). Even though the unidentified officer's statement and actions alleged in the Complaint may have occurred too quickly for anyone to prevent them, the failure of the named officers to intervene afterwards (or even to remonstrate with their fellow officer), coupled with their own alleged involvement in physical mistreatment of East afterwards, can reasonably be read (with the required pro-Perrijean inferences) to imply racial animus on their part too.

 Those same inferences of racial animus would not have attached to the events back at the police station, considered alone. As to those events the Complaint asserts -- in purely conclusory fashion -- that the use of force in the interrogation room and the failure to provide medical care were racially motivated. But there are no facts suggesting such discriminatory intent (other than the fact that East was black, which of course is not enough by itself). And that means no Section 1981 claim is sustainable against any officer or officer who was involved in those events alone.

 In pleading terms, however, the first instance of alleged racial discrimination at the time of arrest is enough to salvage the Section 1981 claim against the named individual defendants. And plainly the claim survives against the unnamed officer who engaged in the overtly discriminatory activity. No dismissal of the Section 1981 count is called for against any individuals who were on the scene at the time of the arrest.

 2. City

 Count I para. 30 reads:

 
The defendant City of Chicago is liable for the conduct of its employees, the individual Defendants named in this complaint as alleged above, pursuant to 42 U.S.C. Section 1981.

  That plainly speaks solely in respondeat superior terms, not on the basis of direct City responsibility. It is well established, of course, that only such direct responsibility is actionable in Section 1983 cases under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) and its progeny. As for Section 1981 liability, Perrijean has similarly been overtaken by the recent decision in Jett v. Dallas Independent School District, 491 U.S. 701, 57 U.S.L.W. 4858, 4867, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989):

 
We hold that the express "action at law" provided by § 1983 for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws," provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor. Thus to prevail on his claim for damages against the school district, petitioner must show that the violation of his "right to make contracts" protected by § 1981 was caused by a custom or policy within the meaning of Monell and subsequent cases.

 Jett controls here. Respondeat superior claims are no more actionable under Section 1981 than under Section 1983. Perrijean's Section 1981 claims against City are dismissed.

 Count II: Section 19837

 Section 1983 requires a plaintiff to prove ( Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Bailey v. Andrews, 811 F.2d 366, 371 (7th Cir. 1987)):

 
1. deprivation of a federal right
 
2. by someone acting under color of state law.

 Again defendants dispute only one element of the claim. Because the second factor is unchallenged, their dispute centers on the sufficiency of the Complaint's allegations as to the first.

 Count II is extraordinarily difficult to parse. Perrijean asserts claims both personally and on behalf of East -- and in the latter respect, her purported claims implicate a number of different constitutional rights and principles. And as if that were not enough, she lumps together the individual named defendants, certain unnamed officers, certain unnamed supervisors and City.

 Unfortunately, rather than analyzing the several claims under the varying standards that govern them, the litigants' memoranda talk in generalities. Because proper analysis demands a more extended discussion than the parties have provided, once again they have greatly increased this Court's work.

 1. Individual Officers (Both Named and Unnamed, But Excluding Unnamed Supervisory Personnel)

 As suggested by the factual statement, Perrijean's claims against individual defendants arise ...


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