and the CTA to make Cook-DuPage a state actor. Under the nexus test, a private entity is a state actor when the state insinuates itself so far into a position of interdependence that it is a joint participant with the private entity. Jackson, 419 U.S. at 357-58. In this case there are simply no factual allegations supporting such a relationship between Cook-DuPage and the CTA. Therefore, this court holds that Cook-DuPage is not a state actor for the purposes of § 1983 and is not amenable to suit under that section. Cook-DuPage's motion to dismiss is granted.
Furthermore, even if this court were to hold Cook-DuPage a state actor, dismissal is proper as to both Cook-DuPage and the CTA, as the complaint fails to allege sufficiently a municipal policy or custom.
In order to state a claim against state actors, under § 1983, a plaintiff must allege that he was deprived of a constitutional right and that such deprivation was caused by a government official acting in accordance with a municipal policy or custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Jackson v. City of Chicago, 645 F. Supp. 926 (N.D. Ill. 1986). Respondeat superior or vicarious liability is not enough. Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988); McBride v. Lindsey, No. 88 C 10928 (November 17, 1989 N.D.Ill.). For the purposes of this motion, the court shall assume that the complaint alleges a deprivation of rights of constitutional magnitude.
Plaintiff alleges that both Cook-DuPage and the CTA are liable, under § 1983, for failure to properly train, supervise and control defendant Cannon. Amended Complaint, p. 7, par. 30. As an initial matter, the court notes that the failure to properly train employees may give rise to § 1983 liability, when the failure to train amounts to "deliberate indifference". City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1204-06, 103 L. Ed. 2d 412 (1989); East v. City of Chicago, 719 F. Supp. 683, 693 (N.D. Ill. 1989). In support of their failure-to-train claim, plaintiffs' point to an alleged prior rape of a passenger by an employee of a different contractor to the CTA. Amended Complaint, p. 7, par. 29. However, knowledge of this single prior incident cannot be said to have "occurred with enough frequency to call for training" of Cook-DuPage employees to prevent sexual abuses, and the failure to do so cannot be said to be deliberately indifferent.
In some instances, the failure to train may be so egregious, and the need so obvious in light of duties assigned to the employees, that the failure to train can be said to be deliberately indifferent.
East, 719 F. Supp. 683. However, in this action, the failure to train Cook-DuPage employees to prevent sexual abuses is not so obvious or related to the duties of Cook-DuPage employees that the failure to train, in and of itself, can be deemed deliberately indifferent.
East, 719 F. Supp. at 694. Moreover, unlike East, sexual abuse is not the type of problem occurring every day in the course of a Cook-DuPage employee's mass transportation duties as to make the need for training in this area "obvious" to either Cook-DuPage or the CTA. See East, 719 F. Supp. at 694. Therefore, plaintiffs' complaint does not state facts sufficient to allege a failure to train claim and is dismissed.
Left before the court is plaintiffs' claim that Cook-DuPage and the CTA failed properly to supervise and control defendant Cannon. Although a successful suit requires the plaintiff to establish that the injury was proximately caused by some municipal policy, custom or practice, Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985), the plaintiff cannot simply track the requirements of Monell, but must allege some facts supporting the existence of a custom or policy. Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194 (7th Cir. 1985); Strauss, 760 F.2d at 767; Edwards v. May, 718 F. Supp. 1379 (N.D. Ill. 1989). Plaintiffs do not allege a written policy; they merely allege that Cook-Du-Page and the CTA's failure properly to supervise and control Cannon constitutes an official policy or custom of inaction. Amended Complaint, p. 8, par 31-32.
When the policy or custom is one of inaction, municipal liability occurs "only where the injury is caused by 'faults systemic in nature.'" Sims v. Mulcahy, 902 F.2d 524, 542 (7th Cir. 1990) (citing Strauss). Moreover, when the municipal policy or custom of inaction is a good deal removed from the constitutional deprivation alleged, the necessity of proof is even greater. Sims, 902 F.2d at 543. Where a policy is not written, the adoption of a defacto policy is shown through a specific pattern or series of incidents that support the allegation of the existence of the policy. Gray v. Dane County, 854 F.2d 179 (7th Cir. 1988); Hossman v. Blunk, 784 F.2d 793 (7th Cir. 1986). Since a municipality cannot be held liable for the independent tort of an individual employee, a single incident is insufficient to establish a custom or policy. City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985); Sims, 902 F.2d at 543; Strauss, 760 F.2d at 767. Rather, plaintiffs must allege a "pattern of conduct or series of acts" violative of constitutional rights. Sims, 902 F.2d at 542, citing, Gray, 854 F.2d at 183; Strauss, 760 F.2d at 768.
In the present case, plaintiffs have failed to allege sufficiently a policy or custom on the part of Cook-DuPage or the CTA. Plaintiffs' allegations are merely boilerplate assertions of the existence of a policy or custom. The only fact alleged in support is a prior incident of a rape by an employee of a different CTA contractor. This lone prior incident, unrelated to either Cook-DuPage or defendant Cannon, is not a "pattern of conduct or series of acts" which would establish a custom or policy of inaction on the part of Cook-DuPage or the CTA. See Jones v. City of Chicago, 787 F.2d 200, 205-06 (7th Cir. 1986) (single reference to alleged sexual abuse by doctor insufficient to support a policy or custom); Ramos v. City of Chicago, 707 F. Supp. 345, 347 (1989) (mere summary of prior incidents unrelated to the defendants is insufficient to establish custom or policy). The plaintiff has therefore failed to allege a policy or custom on the part of Cook-DuPage or the CTA which would make them liable, under § 1983, for the acts of defendant Cannon.
The court therefore dismisses count two of the complaint.
Having disposed of plaintiffs' federal claims, the court also dismisses the pendant state claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Manor Healthcare Corp. v. Guzzo, 894 F.2d 919, 922 (7th Cir. 1990).
In sum, the court dismisses the amended complaint in its entirety as to defendants Cannon, Cook-DuPage, the CTA and Bernard Ford, both in his official and individual capacities.
IT IS SO ORDERED.