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SELEP v. CITY OF CHICAGO

November 24, 1993

SHARON SELEP, Plaintiff,
v.
THE CITY OF CHICAGO, a Municipal Corporation, OFFICER RICHARD BRUECK, OFFICER MICHAEL KELLY, SGT. ANTHONY PRIOLA, OFFICER LEONARD WILKES, LT. JAMES BEGLEY, OFFICER JAMES SANDOW, OFFICER GISELLE PIKOR, JEROME SELEP, TIMOTHY SELEP and OTHER UNKNOWN CHICAGO POLICE OFFICERS, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Sharon Selep brings this three count action claiming that the defendants violated her constitutional rights. Presently before the court is a motion to strike and/or dismiss portions of the complaint, brought by defendants Michael Kelly, Anthony Priola, Leonard Wilkes, James Begley, James Sandow, and Gisell Pikor. For the reasons set forth below, we grant in part and deny in part defendants' motion.

 I. Background1

 The constitutional violations alleged in this case arose out of events occurring between June and December, 1992. Plaintiff Sharon Selep is the wife of defendant Jerome Selep, with whom she had one son, defendant Timothy Selep. Timothy Selep is married to Colleen Brueck, who is the daughter of defendant Chicago Police Officer Richard Brueck. According to the complaint, in June, 1992, Sharon Selep discovered that her son and husband and Richard Brueck were making and selling "black boxes" which decoded cable signals. She reported this conduct to her cable company, who in turn referred her to the Cook County State's Attorney's Office. She sent a letter to the State's Attorney detailing the illegal activities, and an investigation was subsequently begun by the City of Chicago.

 In September, 1992, Colleen Brueck phoned Sharon Selep, who was living outside of Chicago at the time, and informed her of the ongoing investigation. She also warned Selep not to return to Chicago, and told her to "wait until you see what we will do to you." Nonetheless, Selep returned to her Chicago home on December 8, 1992. Throughout the day, Selep and Colleen Brueck exchanged phone calls in which Brueck again warned Selep that Richard Brueck, Jerome Selep, and Timothy Selep were "going to do something" to her. At approximately 5:15 p.m., Richard Brueck and Jerome and Timothy Selep entered the home and threatened Sharon Selep, and when Sharon Selep attempted to call her father for help, Jerome Selep disconnected the phone. In addition, Richard Brueck removed a cable-decoding "black box" that had been attached to the Selep's television.

 Within a few minutes, defendant Chicago Police Officer Michael Kelly and three unknown Chicago police officers arrived at the house and arrested Sharon Selep and charged her with criminal damage to property, based upon a criminal complaint signed by her husband, Jerome Selep. She was transported to the 16th District and then to the 25th District, where she was held for approximately four hours. The criminal charge against her was subsequently stricken, and no criminal charges are currently pending.

 II. Discussion

 A. Multiple Claims in Individual Counts

 Defendants' *fn2" first objection to Sharon Selep's complaint is that she alleges numerous claims in each individual count, contrary to the guidance of Fed. R. Civ. P. 10(b). Defendants are correct. Count I alleges false arrest and conspiracy to falsely arrest, and Count II alleges false imprisonment and conspiracy to falsely imprison. While we do not condone this sort of muddled pleading, violation of Rule 10(b) does not itself provide the basis for dismissal of a complaint. See, e.g., Pryor v. Cajda, 662 F. Supp. 1114, 1116 (N.D. Ill. 1987).

 B. Lack of Notice/Conspiracy

 As a corollary objection, however, defendants assert that Selep's complaint does not provide each defendant with notice of what constitutional violation that defendant allegedly committed. At least with respect to Priola, Wilkes, Begley, Sandow, and Pikor, we agree. In order to hold an individual liable under § 1983, a plaintiff must demonstrate that the individual "caused or participated in an alleged constitutional deprivation." Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). Furthermore, to the extent a § 1983 action is directed against a supervisory official, "without a showing of direct responsibility for the improper action, liability will not lie." Wolf-Lillie, 699 F.2d at 869. Here, it is absolutely impossible to ascertain from Selep's complaint the nature of the involvement of those defendants named above. Selep does not identify how any of these individuals caused or participated in" any of the alleged constitutional violations. It is true that the complaint includes a general statement that these defendants "acting individually and in concert" violated Selep's constitutional rights by "committing" the acts she complains of. However, while the complaint alleges that defendant Kelly was present at Selep's house and actually arrested her, the complaint is utterly devoid of specific allegations with respect to the other defendants bringing this motion. Indeed, they are not even mentioned. Absent some indication of each defendant's individual participation in depriving Selep of any constitutional rights, there is no basis for retaining them in this lawsuit.

 The same is true with respect to the conspiracy claims. We first note defendant's ancillary objections to Selep's conspiracy claims, which are predicated on 42 U.S.C. § 1985. Selep asserts that she has adequately alleged a § 1985 claim because she has "alleged that two or more persons combined to accomplish by concerted action a false arrest and imprisonment for their personal, unlawful purposes." Plaintiff's Memorandum of Law in Response at 8, citing Green v. Saenz, 812 F. Supp. 798, 802 (N.D. Ill. 1992). However, Selep's statements evidence a fundamental misunderstanding of § 1985. Although § 1985 is titled "Conspiracy to interfere with civil rights," it is not in fact the "conspiracy" counterpart of § 1983, as Selep seems to believe. Rather, to state a claim under § 1985(3), the only possible subsection at issue here, a plaintiff must include an allegation of "class-based, invidiously discriminatory animus." Munson v. Friske, 754 F.2d 683, 695 (7th Cir. 1985) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)). Allegations under § 1985 are thus clearly distinct from allegations under § 1983, which require no showing of class-based discrimination. Because Selep has failed to allege any class-based discriminatory animus, we grant defendants' motion to strike any claims arising under § 1985. Furthermore, because liability under § 1986 is derivative of liability under § 1985, see Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 203 (7th Cir. 1985), we strike Selep's § 1986 claims as well.

 This is not to suggest, however, that Selep is precluded from asserting a conspiracy to violate her civil rights. To establish a prima facie case of a § 1983 conspiracy, a plaintiff must demonstrate "(1) an express or implied agreement among defendants to deprive plaintiff of his or her constitutional rights, and (2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement." Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.), cert. denied, 486 U.S. 1043, 100 L. Ed. 2d 620, 108 S. Ct. 2035 (1988). These requirements are not predicated on language in § 1983, much less § 1985; rather, they are simply the necessary elements of any civil conspiracy, as applied to § 1983. See Scherer, 840 F.2d at 441. Indeed, despite her incorrect citation to § 1985, Selep at least ...


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