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CAMPBELL v. CITY OF BERWYN

March 4, 1993

CLIFTON CAMPBELL, DOLCY CAMPBELL, RICARDO CAMPBELL, PAUL CAMPBELL, KADEISHA CAMPBELL and LEADERSHIP COUNCIL FOR METROPOLITAN OPEN COMMUNITIES, a not for profit Illinois organization, Plaintiffs,
v.
CITY OF BERWYN, an Illinois municipal corporation, and FRANK KRAVCIK, Superintendent of Police of the City of Berwyn, Illinois, Defendants.


Williams


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

Plaintiffs Clifton, Dolcy, Ricardo, Paul and Kadeisha Campbell brought this suit against defendants City of Berwyn and Frank Kravcik, Superintendent of Police of Berwyn, alleging that defendant Kravcik terminated police protection of their home from racially motivated attacks because of plaintiffs' race in violation of their constitutional rights to equal protection of the laws under 42 U.S.C. § 1983. Plaintiffs also allege that these unlawful actions violated their civil rights under 42 U.S.C. § 1982, and their rights to Fair Housing under 42 U.S.C. §§ 3604(a), 3604(b), & 3617. Plaintiff Leadership Council For Metropolitan Open Communities (Council) alleges that as a result of defendants Kravcik and City of Berwyn's termination of police protection of the Campbells, the Council's effort to provide counselling and assistance to minority homeseekers and to eliminate discrimination in housing have been hampered in violation of 42 U.S.C. §§ 1982, 3604(a), 3604(b), & 3617.

 Pursuant to Federal Rule of Procedure 12(b)(6), defendants have brought this motion to dismiss Counts I-III of plaintiffs' complaint for failure to state a claim for which relief can be granted. For the reasons set forth below, defendants' motion is granted in part and denied in part.

 Background

 According to the allegations in plaintiffs' complaint, plaintiffs Clifton and Dolcy Campbell, a black couple, purchased a home in Berwyn, Illinois, and moved into that home with their three children, Ricardo, Paul and Kadeisha, on Sunday, March 1, 1992. Berwyn has a population of approximately 43,000, of which approximately 50 individuals are black. No other blacks live on the same street as plaintiffs.

 On March 2, 1992 someone threw a rock through a window of plaintiffs' home. This incident was reported to the Berwyn police. On the evening of March 4, 1992, the front porch of plaintiffs' home was doused with gasoline and set on fire. The Berwyn police and fire departments responded to the fire. At that time, the police believed the fire was a racially motivated attack. On March 5, 1992, plaintiffs publicly stated that they were going to move out of their Berwyn home because of their fears of further racially motivated attacks, and placed a "For Sale" sign in front of their home. Shortly after plaintiffs made this public statement, the Berwyn police began providing the family's home with 24 hour police protection. This protection included the use of two marked squad cars, with one officer stationed in the front and the other in the rear of the home.

 Beginning on March 9, 1992, plaintiffs began receiving racially motivated threatening telephone calls and "hang up" calls. Despite these phone calls, plaintiffs decided to stay in their house and on March 12, 1992, removed the "For Sale" sign from the front of their home. Plaintiffs continued receiving racially motivated threatening telephone calls during this time. On one occasion, Dolcy Campbell also reported to the police that she had been followed to work.

 On March 16, 1992, Kravcik informed plaintiffs' counsel that the on-site police protection plaintiffs were receiving would terminate on March 19, 1992. When plaintiffs' counsel suggested that Kravcik should seek assistance from the Illinois State Police and the Cook County Sheriff's Office, Kravcik stated that plaintiffs could contact them. After plaintiffs' counsel contacted these and other governmental agencies, Kravcik decided not to terminate their on-site police protection, but to reduce it from 24 to 12 hour protection as of March 19, 1992.

 Plaintiffs continued to receive threatening telephone calls through March 23, 1992. On March 25, 1992, Kravcik informed plaintiffs, through counsel, that their on-site protection would terminate on March 26, 1992. After this date, Kravcik told them that the Berwyn police would instead provide two video cameras for plaintiffs' home. One, to be installed by the rear garage, would send a live image to the Berwyn police department, and the other, to be installed inside the front of plaintiffs' home, would record but not transmit. As of the filing of this Complaint only the non-transmitting camera in front of the plaintiffs' home had been installed. Plaintiffs were informed by Kravcik that a court order was necessary before the transmitting video camera could be installed and that it had not yet been obtained.

 The Motion To Dismiss

 Federal Rule of Civil Procedure 12(b)(6) permits a defendant to attack an action based upon the sufficiency of the pleadings, rather than upon the merits of the claim alleged. Fed. R. Civ. P. 12(b)(6). A "complaint should not be dismissed for failure to state a claim 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." Conley v. Gibson, 355 U.S. 41-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When considering a motion to dismiss for failure to state a claim pursuant Rule 12(b)(6), the court must consider all allegations in the complaint in the light most favorable to the plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), and take all well-pleaded facts as true. Ed Miniat, Inc. v. Globe Ins. Group, Inc., 805 F.2d 732, 733 (7th Cir. 1986).

 In Count I of the complaint, plaintiffs allege that defendant Kravcik, in his individual and official capacities, terminated police protection of their home because of their race, in violation of their constitutional rights to equal protection of the laws under 42 U.S.C. § 1983. Defendants correctly assert that a suit against a municipal officer acting in his or her official capacity is the same as a suit against the municipality. Hafer v. Melo, 116 L. Ed. 2d 301, 112 S. Ct. 358, 361-2 (1991); Yeksigian v. Nappi, 900 F.2d 101, 103 (7th Cir. 1990). Therefore, to the extent that plaintiffs are suing Kravcik in his official capacity, it is as if they are suing the City of Berwyn. To succeed on a Section 1983 claim against the City of Berwyn, plaintiffs must establish that they were injured, and that some municipal policy, custom, or practice proximately caused this injury. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Plaintiffs must make specific factual allegations to support their claim of a municipal policy. Id. Mere conclusory allegations of a municipal policy will not suffice. Id.

 Defendants assert that plaintiffs have failed to plead the requisite municipal policy, custom, or practice. In their complaint, plaintiffs allege that they were injured as a result of Kravcik's decision to remove the on-site police protection on the basis of plaintiffs' race. However, plaintiffs' complaint does not suggest that Kravcik's decision was a municipal policy, custom or practice. In fact, plaintiffs have made no attempt whatsoever to allege the requisite municipal policy, custom or practice necessary to state a claim against Kravcik in his official capacity. *fn1" Therefore, defendants' motion to dismiss plaintiffs' equal protection claim against Kravcik in his official capacity in Count I of the complaint is granted.

 Defendants also argue that plaintiffs have not stated a valid claim in Count I against Kravcik in his individual capacity. To bring an action against a defendant in his individual capacity, a plaintiff must show that the defendant (1) acted under color of law, and (2) caused the deprivation of a federal right. Hafer, 112 S. Ct. at 362. In this case, plaintiffs allege that Kravcik, acting under the color of law, intentionally deprived them of police protection because they are black, in violation of the Equal Protection Clause. Defendants argue ...


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