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MCLIN v. CITY OF CHICAGO

July 18, 1990

CALVIN McLIN, By and Through his guardians and next of kin REVEREND and MRS. HARVEY; and JOSEPH WEAVER, By and Through his guardian and next of kin DOROTHY REESE, Plaintiffs,
v.
CITY OF CHICAGO; LEROY MARTIN, Superintendent of Police; DAVID FOGEL, Administrator, Office of Professional Standards; KATHLEEN MOORE, Chicago Police Officer; JAMES SERIO, Chicago Police Officer; PATRICK FITZPATRICK; JOSEPH JOHNSTON; DAN BEYER; BOBBY CAMPBELL; JAMES D. McKEOWAN; DAVID COBB; JOHN BOYD; SALVADOR NOCEDA; and RIGOBERTO BARAJAS, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 II. FACTS

 In ruling on defendants' *fn1" motion to dismiss, the Court accepts as true the factual allegations of the complaint. Plaintiffs are young black men of fourteen years of age. On the evening of August 15, 1989, plaintiffs were standing in Chicago in the vicinity of Comiskey Park, waiting for a bus to take them home from a Chicago White Sox baseball game. At about 10:00 p.m., they were approached by white Chicago police officers Kathleen Moore and James Serio. Moore and Serio beckoned to plaintiffs in a demeaning and derogatory manner. Moore and Serio then ordered plaintiffs into their squad car and drove them around while interrogating them. Plaintiffs informed Moore and Serio of their ages and addresses, that they had no prior criminal records, and that they were on their way home from a Chicago White Sox baseball game. While Moore and Serio drove plaintiffs around, they mocked plaintiffs' voices in a demeaning and racially derogatory manner and made racial slurs. Moore, for instance, asked plaintiffs if they had ever had their "ass kicked by a big fat white woman."

 Moore and Serio agreed with each other to drop plaintiffs off in a racially hostile area. They then drove plaintiffs to 45th Avenue and Union Avenue, near the Graham School, more than two miles from plaintiffs' homes. Moore and Serio knew that this neighborhood was hostile and dangerous to blacks and that the Graham School was a gathering place for white youths who would attack blacks who entered the neighborhood. Moore and Serio never told plaintiffs where they were or why they were being dropped off in that location.

 Moore, at Serio's request, opened the back door of the squad car, struck McLin in the face, and struck Weaver in the neck. The squad car pulled away, and plaintiffs began to walk south on Union Avenue. Plaintiffs were then attacked by white and hispanic youths, who chased plaintiffs while throwing bottles and other objects at them. Plaintiffs began to run, and they were chased by youths who called them "niggers" and other racially derogatory names. The youths threw bottles, sticks and other objects at plaintiffs and sought to catch plaintiffs in order to injure them.

 The youths chased plaintiffs to 47th Street and Union Avenue, where they caught McLin. They beat and kicked McLin until he was unconscious. The youths continued to chase Weaver east on 47th Street, throwing objects at him and calling him racially abusive names. Some of the objects struck Weaver, who also fell and injured himself. Weaver continued running for many blocks and eventually eluded his pursuers.

 Plaintiffs allege that Moore and Serio were aware of the youths' actions and refused to stop them or to come to plaintiffs' aid.

 III. INDIVIDUAL DEFENDANTS

 The complaint does not specify whether Martin and Fogel are sued in their official or their individual capacities. Defendants argue that to the extent Martin and Fogel are named in their individual capacities, they should be dismissed because the complaint does not allege that they had immediate supervisory authority over Moore and Serio or that they had any power to direct the actions of Moore and Serio. Accordingly, defendants argue, plaintiff has not alleged the personal involvement necessary to hold Martin and Fogel liable as individuals. See Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986); Schultz v. Baumgart, 738 F.2d 231, 238-39 (7th Cir. 1984). In their response brief, plaintiffs appear to concede this point, arguing only that the lawsuit may proceed against Martin and Fogel in their official capacities. (Mem. in Response at 14.)

 Defendants further argue that naming Martin and Fogel in their official capacities is improper. A suit against city officials in their official capacities is in reality a suit against the city. See Kentucky v. Graham, 473 U.S. 159, 167, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985); Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 1986); Williams v. City of Chicago, 658 F. Supp. 147, 153 (N.D. Ill. 1987). Because the City is already named as a defendant, defendants argue that the presence of Martin and Fogel as defendants in their official capacities would be superfluous. The Court agrees. As one court has stated, where "no claim against officials in their individual capacities was made, a simpler, technically correct and by far preferable structuring would have been to name the City as the sole defendant." Spell v. McDaniel, 824 F.2d 1380, 1396 (4th Cir. 1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 752, 98 L. Ed. 2d 765 (1988). Because the City is already a defendant, dismissing Martin and Fogel does not prejudice plaintiffs, and it clarifies and streamlines the pleadings. Accordingly, Martin and Fogel shall be dismissed from the case.

 IV. CITY OF CHICAGO

 The City is liable for the acts of its employees pursuant to 42 U.S.C. § 1983 only if execution of the City's "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The City moves to dismiss Counts V and VI on the ground that plaintiffs have not ...


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