The opinion of the court was delivered by: CHARLES R. NORGLE
Before the court is the motion of plaintiff Andrew Sledd, Jr. ("Sledd") to reconsider the October 25, 1991 dismissal of his custom and policy claim.
For the following reasons, the motion is denied.
The four individual defendants, Chicago Police Sergeant Guy Lindsay ("Lindsay") and Chicago Police Officers Elroy Baker ("Baker"), Ernest Brown ("Brown") and Herman Cross ("Cross"), allegedly participated in a March 31, 1989 entry into the home of Sledd's mother on the South Side of Chicago. Sledd alleges that the late evening raid took place pursuant to a search warrant the defendants obtained with false information. The four civilian-attired raiders allegedly smashed in the front door without announcing that they were policemen. Baker, with gun drawn and trailed by Lindsay and Brown, allegedly went to the second floor, where Sledd was getting dressed for work. Sledd thought the policemen were burglars, and after looking around a corner at the policemen, was allegedly shot by them in the abdomen. The policemen then allegedly kicked and beat Sledd while refusing Sledd's request that they summon medical help.
The defendant policemen allegedly sought to cover up their wrongful acts by filing false police reports about the raid. In conspiracy with a pair of non-defendants, the four policemen allegedly obtained an admission from Sledd at a hospital shortly after Sledd underwent surgery. Lindsay, Baker and Brown allegedly filed false charges of aggravated assault and possession of cocaine and cannabis against Sledd. Those three defendants allegedly testified falsely in support of those charges in a state court trial. Sledd claims he was acquitted on all charges.
Sledd filed a four-count federal civil rights action against the City of Chicago (the "City"), and the four alleged raiders, Lindsay, Baker, Brown and Cross, on March 29, 1991. The City moved on October 18, 1991 to dismiss Count IV of that complaint, which alleged that the defendant policemen's conduct was the result of a City policy and practice. This court granted the motion to dismiss on October 25, 1991, and gave Sledd 14 days to file an amended complaint. Sledd, however, had already filed an amended complaint on September 12, 1991.
In response to the court's October 25 dismissal order, Sledd filed a "motion to reinstate the complaint" on November 7, which the court is construing as a motion for reconsideration, and then filed a "motion to clarify" on November 18. The City filed a response to Sledd's "motion to reinstate" on November 12, urging that Sledd's policy and custom claim be dismissed with prejudice. The City responded on November 25 to the "motion to clarify," adding its own motion to dismiss the pendent state law claims in the amended complaint.
In view of the unusual procedural posture of Sledd's motion to reconsider, the court will apply the standards normally applicable to a motion to dismiss under Fed. R. Civ. P. 12(b)(6) in reviewing the adequacy of Count VII of Sledd's amended complaint, the policy and custom claim. The successive motions and responses filed by the parties have given each an opportunity to discuss this issue and respond to the other side's arguments.
On a motion to dismiss under Rule 12(b)(6), the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The court, however, need not strain to find inferences favorable to the plaintiff which are not apparent on the face of the complaint. Coates v. Illinois St. Bd. of Educ., 559 F.2d 445, 447 (7th Cir. 1977). The plaintiff need not set out in detail the facts upon which a 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 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 Dev. 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 Transp. Servs., Inc., 795 F.2d 591, 594 (7th Cir. 1986).
Count VII of the amended complaint alleges that the City, through its Police Department, Police Superintendent, Office of Professional Standards, and director of that office, engaged in various "policies, practices and customs" which proximately caused the alleged violations of Sledd's rights. Among these alleged "policies, practices and customs" are (a) failures to "properly supervise, discipline, transfer, counsel and otherwise control" abusive police officers, including those who use excessive force on suspects, (b) "the police code of silence," and (c) using false arrests, detentions and prosecutions to avoid civil liability, internal disciplinary measures, or criminal liability.
Sledd included in his complaint 21 paragraphs and two appendices of factual allegations which purportedly show the alleged failure to supervise and control. He essentially alleges that 2,000 to 5,000 excessive force complaints against City police officers have been filed annually over the last 15 years with the Police Department Office of Professional Standards ("OPS"), that OPS investigates about 5% of these complaints, that 1-2% are "sustained" or found to have merit by OPS, and that a lesser proportion are sustained after review by the Chicago Police Board and the Police Superintendent. Sledd also alleges that 20% or more of the complaints have merit, as the Police Superintendent has allegedly acknowledged and various studies allegedly show, and that discipline is often not imposed against officers who are ultimately found to have engaged in misconduct. He further alleges that many of the complaints are against "repeaters" who have not been properly disciplined. Appendix B to the amended complaint contains a list of alleged repeaters.
None of the four defendant police officers is included on Sledd's list of repeaters. Sledd alleges, however, that one or more of the defendants have had meritorious excessive force complaints or other misconduct allegations brought against them, but have not been properly disciplined. Sledd's only specific allegations in this regard are his assertions (1) that Lindsay "unjustifiably caused the death of Thomas McBride" in 1988 and was not disciplined, (2) that none of the defendants has been disciplined for the alleged misconduct which formed the basis for this suit, and (3) that Lindsay had a "drug habit" prior to and during the period of the alleged raid on Sledd's mother's house, but Lindsay was not properly supervised, counseled or disciplined prior to the raid, although the City learned of the drug habit at some point and Lindsay was removed from the police force as a result.
Ten paragraphs of factual allegations are included in the amended complaint which purportedly show the code of silence. Sledd cites several other cases in which there was testimony or findings concerning the alleged code of silence. He also alleges in this regard that only one police officer, Frank Laverty, among the thousands who gave statements or testified in the scores of alleged misconduct complaints and actions Sledd lists in the appendices, has implicated his fellow officers in "brutality or unconstitutional conduct."
The alleged false arrest policy and custom is supported by one paragraph in the amended complaint that merely refers to Appendix C, which lists 57 civil rights cases that appear to have been filed since 1970, but does not provide ...