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THOMAS v. CANNON

December 4, 1990

MABEL THOMAS, as Mother and Next Friend of Alecia Thomas, a minor, and JOYCE ANNORH, as Mother and Next Friend of Cornelia Annorh, a minor, Plaintiffs,
v.
MAURICE CANNON, COOK-DUPAGE TRANSPORTATION CO., INC., BERNARD FORD, individually, and in his official capacity, and the CHICAGO TRANSIT AUTHORITY, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court are the motions of defendants Maurice Cannon ("Cannon"), Cook-DuPage Transportation Company, Inc. ("Cook-DuPage"), the Chicago Transit Authority (CTA) and Bernard Ford ("Ford"), the Director of the CTA, to dismiss plaintiff's case in its entirety. For the following reasons, the court grants the motions.

 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 Hospital, 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which the 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).

 Taking the plaintiffs' allegations as true, the facts are as follows. Plaintiffs Mabel Thomas and Joyce Annorh are the mothers of Alecia Thomas and Cornelia Annorh. On December 2, 1989, Alecia Thomas and Cornelia Annorh were waiting for a bus on the corner of 47th and Cottage Grove Avenue in Chicago. At approximately 11:00 p.m., defendant Cannon stopped at the street corner. Cannon, an employee of Cook-DuPage, was driving a maroon automobile marked as a Cook-DuPage vehicle. Cook-DuPage is under contract with the CTA to provide transportation services. Cannon told Alecia Thomas and Cornelia Annorh that he would drive them to their destination, 54th and Cottage Grove, and encouraged them to get in the car. Reluctant to enter, the girls changed their minds and got into the car when two other passengers entered and asked to be taken to 47th and State Street. After dropping these two passengers off at the corner of 47th and State, defendant Cannon, now alone with the girls, proceeded to drive to Washington Park, where he produced a knife and attempted to rape the girls. During the attempted rape, Cornelia Annorh gained control of the knife and stabbed Cannon. The girls then escaped from the car and reported the incident to the police.

 DISCUSSION

 In the first count of the amended complaint, plaintiffs allege that defendant Cannon deprived Alecia Thomas and Cornelia Annorh of rights secured under the fourth and fourteenth amendments to the United States Constitution and brings this action pursuant to 42 U.S.C. § 1983.

 42 U.S.C. § 1983 is the vehicle through which plaintiffs can seek redress for violations of rights secured by the United States constitution and laws. *fn1" In order to state a claim under § 1983, the plaintiff must show 1) a deprivation by the defendant of a right secured by the United States constitution or laws and 2) that the defendant deprived plaintiff of this right under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989). The requirement of action under color of state law is essential to state a claim under § 1983. See Adickes, 398 U.S. at 150; Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir. 1978). The acts of private citizens, no matter how discriminatory, are not prohibited under § 1983. Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989); Ouzts v. Maryland National Insurance Co., 505 F.2d 547, 550 (9th Cir. 1974); Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523, 527 (N.D. Ill. 1990).

 In this case, defendant Cannon was an employee of Cook-DuPage at the time of the alleged attempted rape. The critical issue here is whether Cannon was acting under color of state law when he performed this act. *fn2" The mere assertion that one is a state officer does not mean that the act performed is automatically "under color of state law". Gibson v. City of Chicago, 910 F.2d 1510, 1517 (7th Cir. 1990); Hughes, 880 F.2d at 971. "Action is taken under color of state law when it is 'made possible only because the wrongdoer is clothed with the authority of state law. . . .'" Hughes, 880 F.2d at 971. In other words, the act committed must be in some way related to the performance of the duties of the state office. Gibson, 910 F.2d at 1516.

 In the present case, plaintiff cannot convincingly argue that the attempted rape by Cannon constituted an action under color of state law. Assuming that Cannon was clothed in the authority of the state when performing his duties as a Cook-DuPage Transit worker, the attempt to rape two young girls is not an act even remotely related to the performance of his job. Thus, Cannon has not acted under color of state law and cannot incur § 1983 liability. *fn3" The court therefore dismisses count one of the amended complaint.

 Count two of the amended complaint is brought against defendants Cook-DuPage and the CTA. Plaintiffs allege that both Cook-DuPage and the CTA are liable under § 1983 for failure to properly train, supervise and control defendant Cannon.

 As an initial matter, the court turns to the question of whether Cook-DuPage is a state actor for the purposes of § 1983. As alleged in the complaint, Cook-DuPage is a private corporation under contract with the CTA to provide transportation within Cook County. Amended Complaint, p. 2, par. 6. However, the mere performance of a public contract does not make the actions of private contractors state action. Rendell-Baker v. Kohn, 457 U.S. 830, 841-42, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982).

 In order to subject Cook-DuPage to suit under § 1983, their actions must be "fairly attributable to the State." Rendell-Baker v. Kohn, 457 U.S. at 839, citing, Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). A number of different tests have been developed to determine whether a private entity is considered a state actor: the "public function" test; *fn4" the "state compulsion" test; *fn5" the "nexus" test; *fn6" and, when a prejudgment attachment is involved, the "joint action" test. *fn7" Lugar, 457 U.S. at 938-39. Applicable to this case are the public function test and the nexus test.

 Under the public function test, a private entity can be held to be a state actor by virtue of performing a function "traditionally the exclusive prerogative of the state." Rendell-Baker, 457 U.S. at 842 (emphasis in original), citing, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). Cook-DuPage's operation of regional transport services for the CTA does not make it a state actor for the purposes of § 1983, as mass transportation is not an area "traditionally the exclusive prerogative of the State." See Bester v. Chicago Transit Authority, 887 F.2d 118, 123 (7th Cir. 1989); Mineo v. Transportation Management of Tennessee, 694 F. Supp. 417 (M.D. Tenn. 1988); Arredondo v. Laredo Municipal Transit System, 581 F. Supp. 868, 870 (S.D. Texas 1984), ...


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