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EVAN v. MORALES

October 8, 1991

ELIZABETH A. EVAN, Plaintiff,
v.
JORGE MORALES, JOSEPH CURTIN, JOSEPH TODARO, CENTRO PARA DESARROLLO COMUNITARIO Y LIDERATO, a not-for-profit Illinois corporation, and THE CITY OF CHICAGO, a municipal corporation, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Plaintiff, Dr. Elizabeth Evan, filed this suit against Jorge Morales and the community group, Centro Para Desarrollo Comunitario Y Liderato ("Centro") alleging state tort violations of assault, battery and intentional infliction of emotional distress. She has also brought this suit against Commander Curtin and Officer Todaro of the Chicago Police Department and the City of Chicago alleging a § 1983 violation. Officer Todaro, Commander Curtin and the City of Chicago filed a motion to dismiss all claims asserted against them (Counts IV and V) and Jorge Morales and Centro filed a motion to dismiss all claims asserted against them (Counts I-III). Morales and Centro also filed a crossclaim against Dr. Evan and two of her co-workers alleging malicious prosecution. Dr. Evan has filed a motion to dismiss the crossclaim. For the reasons stated herein, the motion to dismiss Counts IV and V is granted. Under the doctrine of supplemental jurisdiction, Counts I-III and the crossclaim are dismissed for lack of jurisdiction.

 I. FACTS

 Dr. Evan is the principal of Nixon Elementary School in Chicago. Centro wished to have a meeting with Dr. Evan to discuss issues important to them. Dr. Evan refused to meet with them and the group threatened to hold a demonstration in front of her school on May 31, 1990 unless she attended a meeting to be held on that same day at El Buen Pastor United Methodist Church. In response to this threat, Dr. Evan contacted Officer Todaro of the Chicago Police Department and requested security be provided at the Nixon School.

 Commander Curtin told Dr. Evan to lock the front door of the school to keep the protesters outside. The protesters marched from the church to the school, carrying placards. They arrived at the school and began to shout for Dr. Evan.

 At some time during the beginning of this demonstration, Officer Curtin ordered the police officers who were outside of the school to remove themselves to positions outside of the view of the protesters. After the police officers had obeyed this order, Officer Todaro asked Dr. Evan to come to the front door to let in some of the protesters. She agreed to do so and came to the front door. Officers Curtin and Todaro stood behind Dr. Evan while she opened the door. As she did so, Jorge Morales, a participant in the protest, came forward and tried to force the door open. After struggling with Dr. Evan, he grabbed her by the wrist and pulled her to the ground, causing Dr. Evan to lose consciousness.

 II. DISCUSSION

 When deciding a motion to dismiss, the court must take the allegations in the complaint to be true and view them, along with the reasonable inferences to be drawn from them, in the light most favorable to the plaintiff. Doe on Behalf of Doe v. St. Joseph's Hospital, 788 F.2d 411, 414 (7th Cir. 1986); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985). A complaint should only be dismissed if it appears beyond a doubt that the plaintiff can prove no set of facts upon which relief could be granted. Doe, 788 F.2d at 414; Ellsworth, 774 F.2d at 184, cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986); Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985). A plaintiff need only plead facts sufficient to outline the cause of action, but the complaint must contain direct or inferential allegations concerning all of the elements of the cause of action. Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 594 (7th Cir. 1986).

 A. Count IV; 42 U.S.C. § 1983

 In order to state a claim under 42 U.S.C. § 1983, a plaintiff must ". . . prove that the defendant has deprived him of a right secured by the 'Constitution and laws' of the United States." Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970). The plaintiff must also show ". . . that the defendant deprived him of this Constitutional right 'under color of any statute, ordinance, regulation, custom or usage, of any State or Territory." Id., 398 U.S. at 150, 90 S. Ct. at 1604. In this case, plaintiff has failed to establish the first of these requirements.

 In order to show that she has been deprived of a constitutional right, plaintiff must first demonstrate that a constitutional right exists. Here, plaintiff is claiming that her constitutional right to substantive due process under the Fourteenth Amendment has been violated by Commander Curtin and Officer Todaro due to their failure to protect her from harm and/or by their affirmative act in telling her to ...


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