(Id.) On December 12, 1996, plaintiffs filed a two-count complaint with
this court against Stewart, the City and Officers. Defendants sought
leave to file a motion to dismiss the complaint, which the court
granted. However, the court vacated the briefing schedule when it granted
plaintiffs' request to file an amended complaint. (See Mem. Order and
Op., No. 96 C 8148, J. Williams, Feb. 9, 1998.)
Plaintiffs filed their First Amended Complaint on February 28, 1997. In
that complaint, plaintiffs alleged that both the City and Officers
violated Marsha's civil rights, including her rights under the Fourteenth
Amendment. In Count II, Didzerekis charged that Stewart should be held
liable to Marsha's estate for the pain and suffering Marsha endured prior
to her death. In Count III, the remaining plaintiffs claim that Stewart
is liable to them under the Wrongful Death Act. Plaintiffs argued that
because of Stewart's wrongful act, they were deprived of her support,
love, affection, companionship, guidance, care and attention. Defendants
moved to dismiss the First Amended Complaint on May 8, 1997. Plaintiffs
then filed a motion for leave to amend their complaint a second time. On
December 24, 1997, Stewart filed a motion to dismiss plaintiffs' First
Amended Complaint. On February 9, 1998, the court granted all defendants'
motions to dismiss the First Amended Complaint without prejudice and
denied plaintiffs motion for leave to file a Second Amended Complaint,
except to properly allege the parent-child relationship between Marsha
and plaintiffs, Leigh Ann, Dana and Lara Brewer.
The City and Officers now move to dismiss Count I of plaintiffs' Second
Amended Complaint for failure to state a claim upon which relief can be
granted.*fn2 Stewart moves to dismiss Counts II and III for lack of
subject matter jurisdiction, or in the alternative, under Rule 12(b)(6)
for failure to state a claim.
A motion of dismiss tests the legal sufficiency of the complaint and
not the merits
of the suit. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)
(citing Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586
(7th Cir. 1989)). A plaintiff fails to state a claim up which relief may
be granted 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." Leaky v. Board of Trustees of Community College Diet. No. 508,
912 F.2d 917, 921 (7th Cir, 1990) (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In analyzing the sufficiency of
plaintiffs complaint, the Court must accept as true all well-pleaded
factual allegations and draw all reasonable inferences in favor of the
Plaintiff. Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.
1991); Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.
1990). These factual allegations may be contained in the complaint or,
under some circumstances, in plaintiffs reply brief in opposition to a
motion. See Early v. Bankers Life and Cas. Co., 959 F.2d 75, 78-79 (7th
Cir. 1992) (accepting as true facts contained in reply to motion to
dismiss which clarified conclusions pled in complaint and challenged in
motion). This court, however, is "not obliged to ignore any facts set
forth in the complaint that undermine the plaintiff's claim or assign any
weight to unsupported conclusions of law." R.J.R. Services, Inc. v. Aetna
Cas. and Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).
On a motion to dismiss for lack of subject matter, the party asserting
jurisdiction, the plaintiff in this case, bears the burden of making a
prima facie showing that jurisdiction is proper. Chemical Waste Management
v. Sims, 870 F. Supp. 870, 873 (N.D.Ill. 1994). When deciding such a
motion, a court may accept affidavits submitted by both parties, but all
factual disputes must be resolved in favor of the plaintiff. McDonald's
Corporation v. Bukele, 960 F. Supp. 1311, 1314 (N.D.Ill. 1997) (citations
I. Count I: Section 1983
A. The City: Monell Practice or Policy
The City argues that the court must dismiss Count I of plaintiffs'
complaint because it falls to set forth facts sufficient to show a
municipal practice or policy. The City also contends that even if
plaintiffs could show a municipal practice or policy, they did not plead
facts sufficient to show that the practice violated plaintiffs'
A municipal defendant can be held liable under section 1983 if "a
municipal policy or custom caused the constitutional violation."
Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 165, 113
S.Ct. 1160, 122 L.Ed.2d 517 (1993); City of Canton, Ohio v. Harris,
489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Monell v.
Dep't of Soc. Serve, of the City of New York, 436 U.S. 658, 691, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978). To establish a municipal policy that
violated federal rights "[t]he plaintiff must demonstrate that, through
its deliberate conduct, the municipality was the `moving force' behind
the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the
deprivation of federal rights." Bd. of County Comm'rs of Byran County,
Oklahoma v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626
(1997). A municipality can violate an individual's constitutional rights
in three ways:
(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 the constitutional
injury was caused by a person with "final
policy making authority.'