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BATCHELOR v. VILLAGE OF EVERGREEN PARK

February 24, 2004.

PASTOR FREDDIE C. BATCHELOR, THEODORE C. BATCHELOR, JR., THEODORE C. BATCHELOR, III, JESUS M. BATCHELOR, BERTHA A. CORBITT, FANNIE M. CORBITT, Plaintiffs,
v.
VILLAGE OF EVERGREEN PARK, MAYOR JAMES SEXTON, CHIEF OF POLICE, MICHAEL SANDERS, (2) DEPUTY CHIEFS, (9) SERGEANTS, VILLAGE OF EVERGREEN POLICE OFFICERS STAR #116, #101, #152, #006, #140, #150, #153, #203, #214, #417, #151, #137, #456, LT. WAYNE GUTKOWSM, et al., Defendants



The opinion of the court was delivered by: JAMES MORAN, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs filed this nine-count complaint against defendants alleging numerous violations of their civil rights. Defendants filed a motion to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that defendants failed to state a claim. For the following reasons, defendants' motion is granted with leave to amend and re-file.

Plaintiffs moved to the village of Evergreen Park in August 1999. They allege that since that time they have been the target of harassment by employees of the village and its police officers because they are black. Plaintiffs claim that defendants have consistently treated them differently than white families in the area by, among other things, pursuing claims against them that they would not pursue against whites and telling people that plaintiffs are involved in drugs. Page 2

  In deciding a Rule 12(b)(6) motion to dismiss we must assume the truth of all well-pled allegations, making all inferences in the plaintiffs favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994). The court should dismiss a claim 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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). While the complaint does not need to provide the correct legal theory to withstand a 12(b)(6) motion, it must allege all the elements necessary to recover. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047 (1986).

 Counts I and II

  Plaintiffs cannot state a claim for malicious prosecution because no such constitutional tort exists. In Newsome v. McCabe, the Seventh Circuit held that Albright v. Oliver, 510 U.S. 266 (1994) eliminated the possibility of a Section 1983 claim based on malicious prosecution. 256 F.3d 747, 751 (7th Cir. 2001). While this does not foreclose the possibility of a state law claim for malicious prosecution, plaintiffs fail to allege that any charges made against any defendants were terminated in their favor, a necessary element of that tort

 Counts III, IV, V, VI and VIII

  Plaintiffs allege that defendants violated a number of federal statutes: 18 U.S.C §§ 241, 242 and 245; 42 U.S.C. § 14141; 42 U.S.C. § 3631. Each of these statutes imposes criminal liability in the event of a violation but does not allow a private right of action. Plaintiffs cannot therefore state claims for relief.

 Count VII

  In order to state a claim for a civil rights violation under 42 U.S.C. § 1981, plaintiffs must allege that (1) they are members of a racial minority; (2) defendants had the intent to Page 3 discriminate on the basis of race; (3) their discrimination concerned one or more of the activities listed in the statute (i.e. entering into or enforcing a contractual relationship). Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). While section 1981 lists various protected activities, plaintiffs fail to allege that defendants discriminated In connection with any of these. They list no specific civil rights violations, claiming only that they have been "underserved" by the community and its officers.

 Count IX

  We also decline to exercise jurisdiction over plaintiffs' state law defamation claim at this time — no federal jurisdiction remains following the dismissal of the first eight claims.

  Although plaintiffs fail to define a cognizable claim in this complaint, we recognize that they allege facts that may amount to a violation of their civil rights. By invoking 42 U.S.C. § 1983 and 1985, plaintiffs cast a wide net and may be able to amend the complaint so as to properly state a claim for recovery.

  To state a claim for a violation of civil rights pursuant to 42 U.S.C. § 1983, plaintiffs must allege a deprivation of a federally protected right by someone acting under the color of law. Gomez v. Toledo, 446 U.S. 635, 640 (1980); Bailey v. Andrews, 811 F.2d 366, 371 (7th Or. 1987). 42 U.S.C. § 1985 requires that plaintiffs establish the existence of a conspiracy to deprive them of protected lights, and an affirmative act in furtherance of that conspiracy. United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29 (1983). The complaint must contain facts from which the conspiracy can be inferred. Those facts detailing the ...


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