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SMITH v. CITY OF CHICAGO

February 6, 1998

FRED SMITH, Plaintiff,
v.
CITY OF CHICAGO, and City News Bureau, and Evergreen Media, d/b/a V103, Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Plaintiff Fred Smith ("Smith") filed a two count amended complaint alleging defamation by the City of Chicago ("the City"), Evergreen Media ("Evergreen") d/b/a V103, and the City News Bureau ("the Bureau"). *fn1" Count I is brought solely against the City pursuant to 42 U.S.C. § 1983. Count II is a state defamation claim brought against Evergreen and the Bureau. Currently before the court is each Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the City's motion is granted. Smith's remaining count is dismissed, sua sponte, for lack of subject matter jurisdiction. Accordingly, the motions to dismiss filed by Evergreen and the Bureau are denied as moot.

 I. BACKGROUND *fn2"

 The facts of this case are for the most part undisputed and are limited to the events of February 12th and 13th of 1997.

 Smith is employed as an On Duty Administrator ("ODA") by Cook County Hospital ("CCH"), where he presently is responsible for providing on-duty administrative coordination of CCH's inter-departmental and inter-agency functions and activities. As such, Smith deals with, among others, hospital personnel, patients, and outside agencies such as the Chicago Fire Department, the Chicago Police Department ("CPD"), and the news media.

 While working the evening shift as an ODA on February 12, 1997, Smith received a telephone call from Officer Turlan ("Turlan") of the CPD. Turlan informed Smith that, pursuant to a "new" Illinois law, he wanted a CCH physician to order a blood test on a woman he had arrested for driving under the influence ("DUI"). Turlan also told Smith that an emergency room physician had already refused his request. Smith responded by saying that he would immediately investigate the situation and get back to Turlan as soon as possible. When Smith contacted the emergency room physician, the physician told Smith that she refused to order the test because she did not believe that it was medically necessary. Immediately thereafter, Smith informed Turlan in person that CCH had a duty to stand by its physician's medical decision not to order the blood test. During the conversation, Smith allegedly "conducted himself professionally at all times and did not engage in any argument, conflict, or disrespectful manner toward any member of the CPD." (Am. Compl. at 3.)

 Pursuant to an allegedly official custom, policy, and practice of the CPD, Turlan then made a report to the Bureau. In the report, Turlan and other CPD personnel falsely stated that Smith was "almost and/or nearly" arrested after an altercation he had with Turlan and other police officers. (A detailed account of the encounter is not provided in the pleadings.) According to Smith, one or more CPD supervisors, while acting in an official capacity, explicitly gave permission to make the report and directed Turlan not to disclose his name or any other identifying information.

 Seeking redress for the humiliation he has allegedly suffered, Smith filed a two-count complaint in federal court. As amended, Count I alleges that the City, by and through Turlan and other CPD personnel acting in their official capacities, "intentionally, knowingly, maliciously and willfully permitted and/or made misstatements of fact to the media regarding Mr. Smith and depriving [sic] him of his liberty interests pursuant to 42 U.S.C. § 1983." (Am. Compl. at 4.) In the alternative, Smith "alleges that [the City] acted with gross negligence, amounting to a deliberate indifference to his constitutional liberty interests, in violation of 42 U.S.C. § 1983." (Id.) As amended, Count II alleges per se defamation, in that the "conduct [of the Bureau and V103] was intentional and/or grossly negligent in their reckless disregard for the truth. Further, [the Bureau and V103] knew or should have known that said statements and acts would certainly and substantially cause Mr. Smith to suffer severe embarrassment, problems within his profession, anxiety and mental distress." (Id. at 6.)

 Each Defendant now moves to dismiss Smith's complaint pursuant to Fed. R. Civ. P. 12(b)(6).

 II. DISCUSSION

 A. Standard for a Motion to Dismiss

 In reviewing Smith's complaint, the court must accept all well-pleaded factual allegations as true, and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997). At the same time, however, the court need not accept conclusory legal allegations as true. Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). A complaint should not be dismissed unless "it is impossible [for the plaintiff] to prevail 'under any set of facts that could be proved consistent with his allegations.'" Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984)). "'It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a ...


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