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HICKOMBOTTOM v. CITY OF CHICAGO

May 18, 1990

PAUL HICKOMBOTTOM, Plaintiff,
v.
CITY OF CHICAGO, ROBERT McGUIRE, THOMAS TANSEY, JAMES KIERSE, WILLIAM MURPHY, and JAMES O'CONNELL, Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 The City of Chicago and five of its police officers, Robert McGuire, Thomas Tansey, James Kierse, William Murphy, and James O'Connell, have moved to dismiss many portions of the complaint filed by Paul Hickombottom, an inmate at the Menard Correctional Center. Since Hickombottom is proceeding pro se, this court may dismiss his claims "only . . . if it is beyond doubt that there is no set of facts under which he could obtain relief." Shango v. Jurich, 681 F.2d 1091, 1103 (7th Cir. 1982). With this in mind, the court will turn to Hickombottom's factual allegations, which the court must accept as true for purposes of the present motion.

 On March 1, 1986, Hickombottom was at his apartment at 6565 S. Yale Avenue in Chicago, Illinois. Hickombottom had lived at this address for six months, and had leased the apartment with his brother Antonio. At approximately 3 a.m., Hickombottom left the apartment in the company of his girlfriend, Renee Williams -- a woman who did not live at the apartment -- and Arthur Wyatt. Unbeknownst to the three, Chicago Police Detectives (including the officers named in Hickombottom's complaint) had jointly set up surveillance around the apartment, and were waiting for Hickombottom. They were acting on a tip from someone whom they had arrested "well in advance" for a shooting. The tipster told the police that the gun used in the crime was in Hickombottom's apartment. Nevertheless, the police did not obtain a search warrant. Instead, they allegedly conspired to gather evidence which would implicate Hickombottom in the shooting.

 As Hickombottom approached a car which was waiting outside of his flat, officers stopped and arrested him. The officers did not have an arrest warrant. Detective Kierse ordered Hickombottom to lie face down. After Hickombottom did so, officers handcuffed him and searched his person. Kierse then kicked Hickombottom in the stomach and back, telling him that if he lifted his head, officers would "blow his head off."

 Williams obeyed, and went to the apartment. She allowed the officers to come in, and eventually McGuire found a gun. Officers then took Hickombottom to Area I headquarters for questioning. McGuire, Tansey, and an assistant State's Attorney interrogated Hickombottom in four shifts, lasting from 3:30 a.m. until 1:20 p.m. During questioning, Hickombottom repeatedly denied any involvement in the shooting which the police were investigating. McGuire and Tansey told Hickombottom that someone else whom they had arrested for the shooting had led them to Hickombottom, and had told them "everything." They warned Hickombottom that he should talk, or else they would make good on a variety of threats. The threats included taking his children away from him, or charging him or Williams with the crime. They also withheld food and water from Hickombottom and prevented him from sleeping. They assured Hickombottom that they knew he had not pulled the trigger, but they needed a statement, and they promised not to charge him if he gave them one. Yielding to these pressures, Hickombottom gave a statement.

 Apparently the evidence which the detectives had against Hickombottom was not enough. In order to get more, the police allegedly waited 72 hours after Hickombottom's arrest before presenting him to a judge for a hearing on probable cause. At his trial, the prosecution introduced the gun found in Hickombottom's apartment into evidence. Hickombottom's complaint does not say if his statement found its way into evidence too.

 Hickombottom filed a four-count complaint in this court, charging the defendants with violating his civil rights. In Count 1, Hickombottom accuses the defendants of violating his rights under the Fourth and Fourteenth Amendments to the Constitution *fn1" in surveying his apartment, arresting him without a warrant, searching his person, and searching his apartment without a warrant. Hickombottom brings this count pursuant to 42 U.S.C. § 1983 (1982). In Count 2, Hickombottom alleges that the defendants entered into a conspiracy which is illegal under Illinois law. In Count 3, another claim brought under § 1983, Hickombottom contends that the defendants denied him his right to due process under the Fourteenth Amendment by beating him, abusively interrogating him, and prolonging his detention. In Count 4, Hickombottom claims that the City of Chicago is responsible for the actions of its police officers. He alleges that the City "has known of the abusive tactics and policies of the Chicago Police Department and its personnel and has failed to curb and[/]or act on the police department[']s illegal policies." Complaint par. 67. In each of his counts, Hickombottom claims to sue the detectives in their official and individual capacities. He seeks a declaration that the defendants' acts were unlawful, and an injunction that would prevent the defendants from retaliating against him, and compensatory and punitive damages.

 The City of Chicago first contends that Hickombottom has not stated a claim against it, either directly or as a result of his pleading against the detectives in their official capacity, in Counts 1, 3, and 4. See Wolf-Lillie v. Sonquist, 699 F.2d 864, 870 (7th Cir. 1983) (suit against officer in his or her official capacity is suit against government entity itself). A plaintiff may sue a municipality under § 1983 only if the plaintiff can allege that the municipality deprived the plaintiff of his or her federal rights pursuant to an official policy or custom. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). A plaintiff alleges such a policy or custom usually in one of two ways. One is by showing that the deprivation stemmed from the action or decision of a person responsible for making municipal policy. See Pembaur v. Cincinnati, 475 U.S. 469, 479-81, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986); Wilson v. City of Chicago, 707 F. Supp. 379, 384 (N.D.Ill. 1989). The other is by demonstrating a pattern of conduct or a series of acts from which a reasonable person could infer the existence of a policy or custom. See Strauss v. City of Chicago, 760 F.2d 765, 768-770 (7th Cir. 1985); Wilson v. City of Chicago, 684 F. Supp. 982, 985 (N.D.Ill. 1988) (" Wilson I ").

 Hickombottom tries to employ both of these methods of alleging the City's responsibility for the acts of its police officers. Neither attempt succeeds. First, Hickombottom has alleged no fact from which the court could infer that Detectives McGuire, Tansey, Kierse, Murphy, or O'Connell set policy for the City of Chicago on arrests, searches, treatment of arrestees, interrogations, or detentions. Second, Hickombottom has not alleged specific acts of misconduct occurring prior to March 1, 1986, or identified which City official was or should have been aware of these incidents but did nothing to halt them. While Hickombottom need not allege the officers' authority to make policy or the prior acts of misconduct in detail, mere "boilerplate" assertions of authority or official tolerance of misconduct are not sufficient for pleading municipal liability. See Strauss, 760 F.2d at 767-70; Wilson I, 684 F. Supp. at 985.

 The court thus must dismiss Hickombottom's claims against the City in Counts 1, 3, and 4. This would leave only Count 2, Hickombottom's state law count, against the City. Hickombottom may maintain this claim against the City in this court only if this court chooses to exercise "pendent party jurisdiction" over The City. As this court held in Valliere v. Kaplan, 694 F. Supp. 517, 519-21 (N.D.Ill. 1988), it is the "exception, not the rule," for the federal courts to exercise such jurisdiction when the plaintiff has not stated a claim against the municipality under § 1983. Like Valliere, this case involves the difficult question of whether a municipality owes a duty under Illinois law to a citizen or arrestee to prevent its officers from abusing them. This duty is ill-defined; it is better for the state courts to determine its parameters. Defending against the claim in this court would add to the defendants' burdens in this case, and would perhaps require separate counsel for the City. By contrast, Hickombottom has not demonstrated how it would be more efficient to try his claim against the City in this court. The court will thus follow Valliere, and decline to exercise pendent party jurisdiction over the City.

 The defendants' other general objection to Hickombottom's complaint is that Hickombottom lacks standing for declaratory or injunctive relief. A plaintiff who seeks injunctive or declaratory relief "must show that he is in immediate danger of sustaining some direct injury" from the defendants. A plaintiff who has suffered from previous misconduct is left to damages relief only, absent a showing that he or she will be wronged again. This limitation, which stems from Article III's case and controversy requirement, has the salutary effect of maintaining "the proper balance between state and ...


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