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MCBRIDE v. LINDSAY

July 24, 1989

JUNE L. McBRIDE, individually and as administrator of the Estate of THOMAS G. McBRIDE, deceased, CAROL McBRIDE as mother, next friend and guardian of the estates of JENNIFER McBRIDE, LAUREN McBRIDE and THOMAS J. McBRIDE, MARY McBRIDE and JEANNE GARZA, Plaintiffs,
v.
GUY A. LINDSAY, a sergeant in the Chicago Police Department, LYNN LOPIT, an officer in the Chicago Police Department, ROCCO NERO and BRODIE DORTCH, Deputy Sheriffs of Cook County, THE CITY OF CHICAGO, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court are the separate, but identical, motions, pursuant to Fed.R.Civ.P. 12(b)(6), of the Chicago Police Officer defendants, Guy A. Lindsay and Lynn Lopit, and the Cook County Deputy Sheriff defendants, Rocco Nero and Brodie Dortch, (collectively the "individual defendants") to dismiss Count V of plaintiffs' amended complaint. They will be treated as a single motion, which, for the following reasons, is granted.

 FACTS

 On May 17, 1988 at approximately 8:20 p.m., Thomas G. McBride (the "decedent") was observed by the individual defendants on 47th Street, east of South Emerald, in the City of Chicago. He was in an intoxicated state. Plaintiffs admit that he was under the influence of phencyclidine. Defendants assert that he was also under the influence of cocaine and alcohol. The individual defendants restrained decedent, placed him in a squad car and transported him to Mercy Hospital, where he was pronounced dead.

 Plaintiffs, the mother, children, siblings and administrator of the estate of the decedent, allege that the cause of the decedent's death was asphyxia caused by the application of a "choke" hold by Lindsay with the "assistance, cooperation, consent and approval" of the remaining individual defendants. Plaintiffs initially brought the following claims:

 
Count I: the administrator's claim under 42 U.S.C. §§ 1983 and 1988 for damages sustained by the deceased from deprivation of life and fourth, fifth, eighth and fourteenth amendment rights.
 
Count II: the administrator's claim under the Survival Act and Wrongful Death Act for conscious pain and suffering and for loss of support sustained by decedent's minor children.
 
Count III: decedent's children's claim under §§ 1983 and 1988 for loss of society, companionship and support of and from decedent.
 
Count IV: the mother's claim under §§ 1983 and 1988 for loss of society and support and loss of parent-child relationship.
 
Count V: the siblings claims under §§ 1983 and 1988 for loss of society and companionship and loss of sibling relationship.

 The individual defendants moved to dismiss Count I to the extent that it asserted claims under the fifth and eighth amendment. Defendants deemed the fifth amendment claim inappropriate as none of the individual defendants are federal officials. See, Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954). The applicability of the eighth amendment's protections, which attach only after conviction, were also challenged, as no allegations of conviction were made. See, United States v. Lovett, 328 U.S. 303, 317-18, 66 S. Ct. 1073, 90 L. Ed. 1252 (1946). Finally, the individual defendants sought to dismiss Count V in its entirety on the grounds that the siblings do not have a constitutionally protected liberty interest necessary to invoke § 1983.

 In their response to the individual defendants' motion to dismiss, the plaintiffs "moved" pursuant to Fed. R. Civ. P 41(a)(2) to voluntarily non-suit, without prejudice, the administrator's claims alleging deprivation of fifth and eighth amendment rights. Plaintiffs never filed a separate motion to voluntarily dismiss. Subsequently, during the pendency of this motion, plaintiffs did move to amend their complaint to add a sixth count against the City of Chicago. In moving to amend, the plaintiffs indicated that the amended complaint would be identical to the original complaint, except for the inclusion of the City of Chicago as a party and the omission of the fifth and eighth amendment claims. Plaintiffs were granted leave to amend their complaint. As a point of clarification, plaintiffs' voluntary dismissal of their fifth and eighth amendment claims, through their amendments, was allowed, but the dismissal was with prejudice.

 In any event, as a result of the amendments, only the portion of the motion to dismiss pertaining to Count ...


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