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TORRES v. CITY OF CHICAGO

December 7, 2000

ANGELINA TORRES, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF HECTOR RIVERA, DECEASED, PLAINTIFF,
V.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Bucklo, District Judge.

MEMORANDUM OPINION AND ORDER

I.

In the early hours of July 24, 1998, police officer employees of the City of Chicago (the "City") responded to a report of a shooting in the 1200 block of North Washtenaw. At approximately 2:10 a.m., the officers arrived on the scene of the shooting, where Hector Rivera was lying on the floor, bleeding from multiple gunshot wounds. According to the allegations in the complaint, when the officers arrived, witnesses to the shooting informed them that Mr. Rivera was in need of immediate medical care, but the officers waited for nearly an hour an a half, until 3:33 a.m., to summon medical care. Mr. Rivera died, and Angelina Torres, the administrator of his estate, sues for willful and wanton conduct under the Illinois Wrongful Death Act and the Survival Act, and for the violation of Mr. Rivera's rights under 42 U.S.C. § 1983.*fn1 The City removed the case to federal court and now moves to dismiss for failure to state a claim.

II.

On a motion to dismiss, I accept all well-pleaded factual allegations of the plaintiff and draw all reasonable inferences in favor of the plaintiff. Colfax Corp. v. Illinois State Toll Highway Auth., 79 F.3d 631, 632 (7th Cir. 1996). Dismissal is only appropriate if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle her to relief. Id. Under federal notice pleading, the complaint need not allege any facts; Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998); the plaintiff may plead conclusions, Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995).

III.

The City argues that Torres fails to state a claim under 42 U.S.C. § 1983 for municipal violations because her complaint fails to specify a municipal policy or a constitutional injury. A municipality cannot be held liable for the actions of individual employees under § 1983 based on a theory of respondeat superior. Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality may, however, be liable if the plaintiff can show that he or she suffered a constitutional deprivation that was caused by an official policy, custom, or usage of the municipality. Id. at 690-91, 98 S.Ct. 2018.

The City attacks Torres' pleadings as excessively conclusionary. However, federal pleading is "notice" pleading, and plaintiffs may plead conclusions. Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995). Under Fed.R.Civ.P. 8(a)(2), the plaintiff need only include a "short and plain statement of the claim showing that the pleader is entitled to relief." Unlike "fact" pleading, required in some states, "notice" pleading does not require the plaintiff to "plead law or match facts to every element of a legal theory." Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Indeed, "a complaint is not required to allege all, or any, of the facts logically entailed by the claim. . . . A plaintiff does not have to plead evidence. . . ." Id. (quoting American Nurses' Assn. v. Illinois, 783 F.2d 716, 727 (7th Cir. 1986)) (emphasis in original).

The Supreme Court has expressly rejected a heightened pleading standard for § 1983 claims against municipalities. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Although after Leatherman the Seventh Circuit stated that "[b]oilerplate allegations of a municipal policy, entirely lacking in any factual support that a city policy does exist, are insufficient," Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir. 1994) (quoting Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 202 (7th Cir. 1985)), cited in Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 479 (7th Cir. 1997), — and I followed this in Mosby v. Bell, 60 F. Supp.2d 788, 790 (N.D.Ill. 1999) — it recently held that such "boilerplate" allegations are indeed sufficient.*fn2 McCormick v. City of Chicago, 230 F.3d 319, 324-25 (7th Cir. 2000). Conclusory language in the complaint was sufficient to put the City on notice of the claims even though it did not plead facts. Id. at 325.

The City asks me, in essence, to disbelieve Torres' allegations of the existence of a constitutional violation and municipal policy because she has not backed them up with facts. She does not have to. On a motion to dismiss, I must take all of the well-pleaded allegations of the complaint as true. Wardell v. City of Chicago, 75 F. Supp.2d 851, 854 (N.D.Ill. 1999). Torres has alleged that Mr. Rivera's Fourteenth Amendment rights to equal protection were violated by a policy of the City, and she has not pled any facts inconsistent with this claim.

IV.

The Illinois Tort Immunity Act provides that a public entity cannot be liable for "failure to establish a police department or otherwise provide police protection service, or, if police protection is provided, for failure to provide adequate police protection or service. . . ." 745 ILCS 10/4-102. It also immunizes public employees "serving in a position involving the determination of policy or the exercise of discretion [from liability] for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201. Neither § 4-102 nor § 2-201 provides an exception for willful and wanton conduct. Hernandez v. Kirksey, 306 Ill. App.3d 912, 239 Ill.Dec. 915, 715 N.E.2d 669, 672 (Ill.App. 1999) (§ 4-102); Harinek v. 161 N. Clark St. Ltd. P'ship, 181 Ill.2d 335, 230 Ill.Dec. 11, 692 N.E.2d 1177, 1184 (1998) (§ 2-201).

A public employee is not liable for negligence "in the execution or enforcement of any law," but he is liable if his "act or omission constitutes willful and wanton conduct." 745 ILCS 10/2-202. "Willful and wanton conduct" is defined by the Tort Immunity Act as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210. Torres alleged, and I must take it as true for the purposes of this motion, that the officers' conduct was willful and wanton.

Even if she had not specifically alleged willful and wanton conduct, Illinois courts have consistently held that the failure to provide medical care upon request is willful and wanton. See Singleton v. City of Chicago, No. 99 C 0059, 2000 WL 224619, at *2 (N.D.Ill. Feb. 25, 2000) (Gettleman, J.). According to the complaint, Mr. Rivera was lying on the ground, bleeding from multiple gunshot wounds, and witnesses to the shooting requested medical assistance when the officers arrived, but the officers waited nearly an hour and a half to ...


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