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LOWE v. BROWN

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


August 22, 1995

ALONZO LOWE, Plaintiff,
v.
JEFFORD E. BROWN, CITY WIDE SECURITY and the CHICAGO HOUSING AUTHORITY, Defendants.

The opinion of the court was delivered by: JAMES H. ALESIA

MEMORANDUM OPINION AND ORDER

 Plaintiff Alonzo Lowe has filed a seven-count Complaint against defendants Jefford E. Brown, City Wide Security ("City Wide") and the Chicago Housing Authority ("CHA"). Now before the court is defendant CHA's Motion to Dismiss. FED. R. CIV. P. 12(b)(6).

 I. BACKGROUND

 The Complaint alleges that defendant Brown worked as a uniformed security guard for defendant City Wide, and that defendant CHA had contracted with City Wide to provide security at 2930 South Dearborn Street. On the night of May 7, 1995, plaintiff Lowe was lawfully going about his business at that address. A "verbal altercation" arose between Lowe and Brown, and then Brown "without cause, provocation or justification" drew his revolver "in a threatening manner." Lowe "remarked" to Brown "about his unreasonable and unnecessary display of force at which time Brown without cause, provocation or justification, held his weapon and shot striking the plaintiff in his right leg." Plaintiff was seriously injured. (Complaint PP 7-12.)

 As against defendant CHA, plaintiff brings Count VI, styled a "1983 Policy Claim," and Count VII, a pendent "negligence undertaking" claim. CHA moves to dismiss under Rule 12(b)(6), claiming that both Counts VI and VII are insufficient as a matter of law. The motion should be granted only if the court is certain that the plaintiff cannot prove any set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The court considers each count in turn.

 II. COUNT VI: SECTION 1983 CLAIM

 Neither party disputes that to maintain a Section 1983 claim against CHA the plaintiff must establish that "the alleged constitutional deprivation was pursuant to an 'official policy'" of the CHA. Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992). Where the entity exhibits deliberate indifference to rights of persons through, for example, failure to train, "such an inadequacy can be thought of as ... 'policy or custom' that is actionable under ยง 1983." Id. Defendant CHA argues there is insufficient allegation of policy in Count VI.

 The fact that the alleged direct violator of civil rights worked for a company under contract to CHA does not void the claim per se. It is possible that in contracting out work a government body could act with deliberate indifference to constitutional rights. In dismissing a case under similar circumstances where the policy allegations were insufficient, Judge Norgle has operated under the assumption that a governmental entity cannot layer itself away from liability. See Thomas v. Cannon, 751 F. Supp. 765, 769-70 (N.D. Ill. 1990). Cf. Deaton v. Montgomery County, 989 F.2d 885 (6th Cir. 1993); Ancata v. Prison Health Services, Inc., 769 F.2d 700 (11th Cir. 1985).

 CHA also argues that there has been no policy identified, but that is not accurate. In paragraph 46 of his Complaint, plaintiff alleges: "The CHA has a policy[,] practice and custom of deliberate indifference to the illegal, reckless, wanton, and willful conduct of City Wide, their security guards and other security companies ... that bridged [sic] the constitutional rights of Alorizo Lowe and others." That is the alleged illegal policy.

 The policy, however, must be alleged in a non-conclusory fashion. In Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985), the Seventh Circuit required that a Section 1983 plaintiff allege "facts to suggest that the policies of which he complains actually exist." Id. at 767. This requirement has survived recent Supreme Court pleading jurisprudence. See Baxter v. Vigo County School Corp., 26 F.3d 728, 736 (7th Cir. 1994). But here plaintiff has gone beyond mere "boilerplate allegations of a municipal policy." Id. (citations omitted). In paragraph forty of his Complaint plaintiff alleges thirteen incidents that he hopes to use to ground his allegation of a CHA policy of deliberate indifference to the brutality of private security forces acting under CHA contract. The incidents range in time from July 24, 1989, through March 9, 1994. Plaintiff passes the liberal Rule 12(b)(6) standard as to Count VI.

 III. COUNT VII: NEGLIGENT UNDERTAKING

 On Count VII, defendant CHA relies on the principle that "an employer is generally not liable for the acts of an independent contractor." Spivey v. Brown, 150 Ill. App. 3d 139, 502 N.E.2d 23, 25, 103 Ill. Dec. 876 (1986). However, it is not as if under the Complaint liability is precluded as a matter of law without any further fact inquiry. First, as CHA's own authority makes clear, the determination whether one is an independent contractor relies on the facts of the situation. Id. Second, for a Rule 12(b)(6) motion to succeed, it must be impossible for plaintiff to succeed, but there are factual scenarios under which a principal may be liable for the acts of its independent contractor. See Kouba v. East Joliet Bank, 135 Ill. App. 3d 264, 481 N.E.2d 325, 328, 89 Ill. Dec. 774 (1985) (failure to use reasonable care in selection); Bear v. Power Air, Inc., 230 Ill. App. 3d 403, 595 N.E.2d 77, 82, 172 Ill. Dec. 14 (inherently dangerous risks), appeal denied, 146 Ill. 2d 622, 602 N.E.2d 446 (1992). Accordingly, the case must proceed further.

 CONCLUSION

 Defendant Chicago Housing Authority's Motion to Dismiss is denied.

 Date: AUG 22 1995

 JAMES H. ALESIA

 United States District Judge

19950822

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