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EDWARDS v. MAY

July 28, 1989

DAVID EDWARDS, JR., Plaintiff,
v.
KERRY E. MAY, CHARLES FOUNTAIN, and CITY OF CHICAGO, a Municipal Corporation, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendant, City of Chicago, to dismiss Counts II, III and V of plaintiff's complaint. For the reasons stated below, defendant's motion is granted, and the remaining Counts, I and IV, are dismissed sua sponte.

 FACTS

 Plaintiff's complaint is based upon the alleged use of excessive force during the period between his arrest and arraignment and the alleged denial of medical attention. Specifically, plaintiff alleges that, on the date of his arrest for burglary, the defendant police officers, while returning plaintiff from the Criminal Court building at 26th and California (where he was taken in an unsuccessful attempt at arraignment) to the 21st District police station, handcuffed him, placed him in a squadrol, *fn1" without securing him with a seat belt, and "intentionally increased their speed" over paved, public city streets which caused plaintiff to be jostled about and sustain serious injuries. Having done so, they then ignored plaintiff's complaints of injury and requests for medical attention.

 DISCUSSION

 On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 The court will address the federal claim first, since, if it is deficient, the court need go no further.

 COUNT V

 Count V is a 42 U.S.C. § 1983 claim against the City *fn2" alleging that violations of plaintiff's fifth, eighth and fourteenth amendment rights resulted from the defendant police officers' conduct undertaken pursuant to an official policy or custom of the City. Count V is dismissed. Plaintiff simply alleges that the City has a policy of failing to properly reprimand the behavior of the police officer defendants and ratifying similar prior misconduct by the police officer defendants and other officers. Plaintiff's boilerplate conclusory allegations of an official policy or custom are insufficient. See Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985). Plaintiff must allege specific facts which, if true, tend to support his allegation that a municipal custom or policy exists which could have caused his injury. 760 F.2d at 768-69.

 Plaintiff, in his Response To Defendants' Motion To Dismiss, refers for support to cases in which a policy of transporting pre-trial detainees handcuffed in the back of squadrols was sufficiently stated. See Montgomery v. City of Chicago, 670 F. Supp. 230 (N.D. Ill. 1987); Brown v. City of Chicago, 573 F. Supp. 1375 (N.D. Ill. 1983). However, Count V contains only allegations of a policy of failing to reprimand. It is Count III, a state law negligence claim against the City, which alleges a policy of transporting arrestees in the rears of squadrols, with their hands cuffed behind their backs, unrestrained from being thrown about the vehicle. However, the paragraph containing this allegation was not incorporated into Count V, the § 1983 claim. Moreover, even it it were incorporated, given the absence of specific factual allegations, Count V would still remain deficient under Strauss.

 In the alternative, even if plaintiff were to properly plead a custom or policy, neither fifth nor eighth amendment protections are implicated here. The fifth amendment applies only to claims made against federal officials. Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954); Monitor v. City of Chicago, 653 F. Supp. 1294, 1299 (N.D. Ill. 1987). Eighth amendment protections attach only after conviction. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir. 1988); Hawkins v. Poole, 779 F.2d 1267, 1269 (7th Cir. 1985). These are hardly recent developments in constitutional law. Counsel for plaintiff is reminded of his duties under Fed. R. Civ. P. 11.

 This leaves only the allegation of fourteenth amendment violations resulting from excessive force and denial of medical attention to support plaintiff's § 1983 claim. *fn3" Addressing whether plaintiff has properly stated a claim under § 1983 for excessive force occurring between plaintiff's arrest and arraignment requires the court, in the first instance, to determine the appropriate standard under which to review the sufficiency of his allegations.

 Section 1983 does not in itself convey substantive rights, but only provides a conduit through which to vindicate federal rights. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). Federal courts have struggled with both the proper constitutional basis for § 1983 excessive force claims and the standard under which they should be evaluated. Depending upon plaintiff's status at the time the excessive force was allegedly exerted, various provisions have been applied -- among them the fourth, fifth, eighth and fourteenth amendments. Courts also have, in various situations, applied the concept of substantive due process as the source of the rights allegedly infringed. Yet, the Supreme Court has now rejected the practice of applying a "single generic standard", such as the substantive due process test, to all § 1983 claims. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1870, 104 L. Ed. ...


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