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.
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).
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.
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
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.
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 ...