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GLATT v. CHICAGO PARK DIST.

March 21, 1994

FRANK H. GLATT, Plaintiff,
v.
CHICAGO PARK DISTRICT, JIM HALPER and ROBERT NELSON, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of defendants Chicago Park District ("Park District"), Jim Halper ("Halper"), and Robert Nelson ("Nelson") (collectively "defendants") to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the motion is granted as to counts II and III, and denied as to count I.

 FACTS

 The Park District is a municipal corporation, and Jim Halper ("Halper") and Robert Nelson ("Nelson") are two of its employees. As part of the Park District's governmental functions, the Park District regulates the assignment and renewal of boat mooring permits for the harbors in Lake Michigan. Under the rationale of continuity, the Park District has an ordinance establishing a procedure for assigning and renewing permits.

 Plaintiff Frank H. Glatt ("Glatt") has been mooring his vessel during the sailing seasons at the Diversey Harbor. For several years prior to 1993, the Park District had assigned mooring space D-19 in the Diversey Harbor to Glatt. Over the years, Glatt made improvements to space D-19. In April 1993, after Glatt had renewed his mooring permit, the Park District did not reassign D-19 to him as he anticipated. Glatt alleges that the new mooring space is unsafe and less desirable than D-19, and that Halper and Nelson caused the less favorable mooring space assignment.

 Glatt alleges that defendants violated 29 U.S.C. § 1983 by depriving him of various constitutional rights. First, Glatt claims Halper and Nelson deprived Glatt of his right to freedom of speech protected under the First Amendment. In support of this claim, Glatt asserts both Halper and Nelson directed the Park District personnel not to remove weeds from the immediate vicinity of Glatt's mooring in retaliation for speaking out on a matter of public concern. Second, Glatt claims that his right of association under the First Amendment was violated when Halper warned other permit holders in Diversey Harbor that Glatt was a "defector" and had made complaints of Park District misconduct, causing other permit holders to stop associating with Glatt. Third, Glatt claims that he was deprived of his property right without due process when the Park District refused to give him mooring space D-19.

 DISCUSSION

 On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the allegations of the complaint, as well as all reasonable inferences drawn from them are taken as true. Perkins v. Silverstein 939 F.2d 463, 466 (7th Cir. 1991). A dismissal under rule 12(b)(6) is proper only if 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). A complaint's mere vagueness or lack of detail is not sufficient to justify a dismissal. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). The court, however, need not strain to find inferences favorable to the plaintiff which are not apparent within the four corners of the complaint. Coates v. Illinois State Bd. of Educ., 559 F.2d 445, 447 (7th Cir. 1977). The complaint must state either direct or inferential allegations to establish the necessary elements for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1979).

 To state a § 1983 cause of action, the challenged complaint must satisfy two requirements: (1) that the defendant acted under the color of law, and (2) that the defendant deprived plaintiff of a federal right. Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991). In the event the plaintiff seeks § 1983 relief from a municipality, the plaintiff must satisfy a third requirement; that the municipality had a policy or custom which caused the injury. Monell v. Dep't. of Social Servs. of City of New York, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Moreover, a suit against a public official in his or her official capacity is equivalent to a suit against the municipality he or she represents. Brandon v. Holt, 469 U.S. 464, 471-72, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985).

 In the absence of any allegation that individual defendants are being sued in their individual capacities, an allegation that the individual defendants acted under the color of law generally is construed as a suit against them in their official capacities only. Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990). If, however, the pleadings when read in their entirety plainly show that an individual capacity suit was intended, then an individual capacity will be assumed. Hill, 924 F.2d at 1373.

 In the present case, Glatt's complaint contains no express statement that Halper and Nelson are being sued in their individual capacities. Glatt is, however, seeking punitive damages from Halper and Nelson, a form of relief that cannot be obtained from a municipality or from individuals sued in their official capacities. Kolar v. County of Sangamon, 756 F.2d 564, 567 (7th Cir. 1985). In Glatt's response to defendants' motion to dismiss, Glatt asserts that his intention is to sue Halper and Nelson in their individual capacities. Furthermore, the caption of Glatt's complaint does not refer to either Halper or Nelson by their official titles with the Park District, another factor tending to demonstrate an individual capacity suit. See Kolar, 756 F.2d at 567. When Glatt's pleadings are read in their entirety, the pleadings evince that an individual capacity suit was intended against Halper and Nelson. Consequently, with respect to the counts against Halper and Nelson, counts I and II, an individual capacity suit is assumed, and Glatt need not allege a municipal policy or custom. Nonetheless, Glatt is subject to the third requirement of alleging municipal policy or custom as to Count III because it is asserted against the Park District, a municipal corporation.

 Counts I and II allege that Halper and Nelson deprived Glatt of his First Amendment rights to freedom of speech and association. The complaint sufficiently alleges that at all relevant times, both Halper and Nelson acted under color of law. Because Glatt brings these counts against Halper and Nelson in their individual capacities, Glatt's only other requirement to state a viable § 1983 action is that he allege sufficient facts to show he was deprived of his ...


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