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ANGARA v. CITY OF CHICAGO

December 12, 1996

PONCIANO S. ANGARA, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation, ALEXANDER VROUSTOURIS, individually and as Inspector General of the City of Chicago; TERESITA B. SAGUN, individually and as Commissioner of Department of Sewers of the City of Chicago; MICHAEL SPAGNOLA and JAMES SULLIVAN, individually and as employees of the Office of Inspector General of the City of Chicago; and JOHN DOE(S), and JANE DOE(S) individually and as employees of the Office of the Inspector General of the City of Chicago, Defendants.



The opinion of the court was delivered by: DENLOW

MEMORANDUM OPINION AND ORDER

 Plaintiff Ponciano S. Angara ("Angara") has filed a Motion For Leave To File a Second Amended Complaint seeking to add the City of Chicago as a defendant under 42 U.S.C. § 1983. The parties agreed that to expedite consideration, the motion would be treated pursuant to the Fed.R.Civ.P. 12(b)(6) standard rather than the Fed.R.Civ.P. 15(a) standard. For the reasons stated below, the Court finds that Angara has alleged sufficient facts to state a cause of action and his Motion For Leave To File a Second Amended Complaint is granted and Defendant's response, which is treated as a Rule 12(b)(6) Motion to Dismiss, is denied.

 I. PROCEDURAL POSTURE

 On July 20, 1995, Judge Alesia entered a Memorandum Opinion and Order dismissing in part and granting in part defendants' motion to dismiss the plaintiff's first amended complaint. See Angara v. City of Chicago, 897 F. Supp. 355 (N.D.Ill. 1995). The Court held in relevant part that:

 
Plaintiff's § 1983 claims under the Fifth and Fourteenth Amendments are dismissed with prejudice. Plaintiff's § 1983 claim under the Fourth Amendment and the false imprisonment claim under state law remain. Defendant City of Chicago cannot be held liable under § 1983. Plaintiff's request for punitive damages against the City and the individual defendants in their official capacity is stricken.

 Angara v. City of Chicago, 897 F. Supp. 355, 361 (N.D.Ill. 1995). Plaintiff's second amended complaint is directed solely at bringing defendant City of Chicago back into this action.

 II. MOTION TO DISMISS STANDARD

 In ruling on a motion to dismiss under Fed.R.Civ.P. ("Rule") 12(b)(6), the Court accepts as true all well-pleaded facts and it draws all reasonable inferences in the light most favorable to the plaintiff. Sherwin Manor Nursing Home Ctr. Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th Cir. 1994); Dehainaut v. Pena, 32 F.3d 1066, 1070 (7th Cir. 1994). The issue on such a motion is not whether a plaintiff will ultimately prevail, but whether it is entitled to offer evidence to support its claim. Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995). Complaints are to be read liberally, and the court may grant the motion only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Thompson v. Boggs, 33 F.3d 847, 852 (7th Cir. 1994).

 III. DISCUSSION

 Plaintiff's second amended complaint alleges that defendant City of Chicago is liable for the violation of Plaintiff's constitutional rights because the City of Chicago acquiesced and approved of alleged unconstitutional conduct of the Inspector General's office in conducting investigations and the Inspector General was vested with final decision making authority in the area concerning the investigation of alleged employee misconduct. Not surprisingly, the City argues that neither did it acquiesce or approve of any unconstitutional actions nor did the Inspector General have final decision making authority.

 Plaintiff alleges that several deputies of the Inspector General's office arrived at his place of employment and ordered him into a vehicle which transported Plaintiff to a building located at 1224 West Van Buren, Chicago. (Pl. Comp. P 12). Upon arriving at the building, Plaintiff was placed into a room with no windows where he was detained for several hours. Id. Plaintiff was instructed to wait in the room and at least one individual was stationed outside the room to ensure that plaintiff did not attempt to leave. Id. Also, when Plaintiff made use of the restroom facilities he was accompanied by an escort. Id. Finally, Plaintiff was neither given his Miranda rights nor apprised of the reason for his detention. Id.

 Plaintiff makes several allegations with respect to the issue of whether the City was apprised of or acquiesced to the alleged unconstitutional conduct. Plaintiff alleges that the City was aware of the Inspector General's methods for conducting investigations because on at least two previous occasions similar methods were used to investigate employees in the City's Streets and Sanitation Department and the City Bridge tenders. (Pl. Comp. PP 24, 27). Plaintiff also alleges that the City was apprised of the Inspector General's investigative methods because the City settled an action filed in this Court with several employees from the City Streets and Sanitation Department relating to the conduct of the Inspector General. (Pl. Comp. PP 25-27). Plaintiff's allegation that the Inspector General is vested with final decision making authority relies on the ordinance which created the office. (Pl. Comp. P 5).

 A. Municipal Liability Under Section 1983

 Recovery from a municipality is "limited to acts that are, properly speaking, 'acts of the municipality' - that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986). To plead a § 1983 claim against the City of Chicago, plaintiff must allege: "(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law; or (3) an allegation that constitutional injury was caused by a person with final policy making authority." McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). Plaintiff does not allege that the City promulgated an express policy which when enforced causes a constitutional deprivation. Rather, Plaintiff alleges that the City was apprised of and acquiesced to the manner in which the Inspector General conducted investigations into employee misconduct. Plaintiff alleges that the investigation of the Streets and Sanitation and City Bridge tenders employees apprised the City of Inspector Vroustouris' methods for conducting investigations. Also, Plaintiff alleges the settlement by the City of the action commenced in this Court apprised the City of the Inspector's actions. Thus, ...


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