United States District Court, N.D. Illinois, Eastern Division
October 13, 2004.
HOUSTON MALDEN, Plaintiff,
CITY OF WAUKEGAN, ILLINOIS, a municipal corporation; WILLIAM BIANG, individually and in his official capacity as Police Chief of the Waukegan Police Department; and JAMES KIRBY, individually and in his official capacity as a City of Waukegan Police Officer, Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Houston Malden ("Malden"), filed suit, alleging
violations of 42 U.S.C. § 1983, against Waukegan Police Officer
James Kirby ("Kirby"); Waukegan Police Chief William Biang
("Biang"); the City of Waukegan ("Waukegan") (Counts I-III,
respectively), and state law claims of respondeat superior and
indemnification against Waukegan (Counts IV and V, respectively).
Presently before the Court is the Defendants' Motion to Dismiss
On or about April 24, 2002, Malden was sleeping in a limousine
located in the vicinity of 1315 S. Pleasant Hill Gate, Waukegan,
Illinois. The Waukegan Police Department received a call about
Malden being present in the limousine, although no report was
given as to whether he was armed with a firearm, knife, or any
other dangerous weapon. Kirby, an on-duty City of Waukegan Police
Officer, responded to the call and arrived at the scene where
Malden was present. Malden then woke up and exited the limousine. After exiting, Kirby maced
Malden and drew his revolver, discharging his weapon in the
direction of Malden. Malden, who was unarmed and had not struck
or threatened to strike Kirby, was shot by Kirby multiple times,
including a wound in the left shoulder, two wounds in the upper
left torso, two wounds in the left thigh, one wound to both the
right and left forearm, and one wound in the right knee. Malden
then took a marked City of Waukegan squad car and attempted to
drive himself to Lake Forest Hospital, but he passed out and
crashed the car into a tree on the way. Malden was then taken by
ambulance to Lake Forest Hospital, where he underwent multiple
surgeries for his gunshot wounds. These injuries required a
ten-inch steel plate and fourteen screws to be permanently
inserted into Malden's left forearm to rebuild his ulna.
In an attempt to cover up his unlawful actions, Kirby lied
about the events that had occurred involving Malden, falsified
police reports, and tampered with evidence from the crime scene
and witness testimony.
At the time of the alleged incident, Biang was not the Police
Chief. Rather, he is the successor of the late Miguel Juarez, who
was the Police Chief during the above occurrence.
In reviewing a motion to dismiss, the court considers all facts
alleged in the complaint and any reasonable inferences drawn
therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000). Dismissal is warranted if "it appears beyond a
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). The "suit should not be dismissed if it is possible to hypothesize facts, consistent with
the complaint, that would make out a claim." Graehling v. Vill.
Of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).
Count I alleges a § 1983 claim for constitutional violation
pursuant to Malden's Fourth, Fifth, and Fourteenth Amendment
rights against Kirby. The Defendants argue that Malden has failed
to state a claim for a violation of his Fourth Amendment
constitutional rights. Malden argues that he has sufficiently
pled a claim for violation of his Fourth Amendment right to be
free from the use of excessive force. To state a claim for the
use of excessive force in violation of one's Fourth Amendment
right to be free from unreasonable seizures, a plaintiff must
allege that the use of such force was objectively unreasonable.
Saucier, 533 U.S. at 204-205. Malden has alleged that Kirby
unjustifiably drew his weapon and shot Malden several times,
despite Malden's presenting no danger of harm. Based on these
allegations, Malden has successfully put Kirby and the other
Defendants on notice of the grounds for his Fourth Amendment
Count I also pleads two additional claims, each under a
separate and distinct constitutional provision. Federal Rule of
Civil Procedure 10(b) requires that separate claims be brought
under separate counts. As discussed above, Plaintiff has
sufficiently pled a Section 1983 cause of action under the Fourth
Amendment. Accordingly, the two other claims included in Count I,
based on violations of Plaintiff's Fifth and Fourteenth Amendment
rights, are stricken.*fn1
Count II charges Biang with violating Malden's constitutional
rights for knowing and tolerating the use of excessive force by
his officers. "There is no principle of superiors' liability in
the law of constitutional torts." Jones v. City of Chicago,
856 F.2d 985, 992 (7th Cir. 1988). Thus, to be liable for the conduct of their subordinates, supervisors
must have been personally involved in that conduct. Jones,
856 F.2d at 992 (emphasis added). Supervisors who are merely
negligent in failing to detect and prevent subordinates'
misconduct are not liable because § 1983 does not make negligence
culpable, Jones, 856 F.2d at 992. Furthermore, "[t]he
supervisor must know about the conduct and facilitate it, approve
it, condone it, or turn a blind eye for fear of what they might
see. They must, in other words, act either knowingly or with
deliberate, reckless indifference." Jones, 856 F.2d at 992-993.
The Defendants argue that Malden has failed to state a claim
because Chief Biang was not personally involved in the alleged
incidents since he was not Police Chief yet; and, therefore, he
can not be liable to Malden. Because Biang was not the acting
Police Chief at the time of the alleged constitutional
violations, he had no authority over Kirby to prevent the
incidents from occurring. At the time of the alleged incident,
Biang had no authoritative control over Kirby nor did he have the
authority to take remedial steps to address the allegedly regular
use of excessive force by Waukegan Police Officers, as Malden
alleges. Only the late Miguel Juarez, the acting Police Chief at
the time of the incidents, had the authority to do so. Thus,
Biang cannot not be liable to Malden; and Count II of Malden's
Complaint is dismissed.
Count III alleges that Waukegan had a policy which allowed its
police officers to go unpunished for using excessive force in
conducting their police business. To state a § 1983 claim against
a municipality, the plaintiff must allege that the municipality's
custom or policy resulted in the deprivation of their
constitutional rights. Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 694 (1978). "[P]laintiffs must allege an
`affirmative link' between the policy and the constitutional
violation such that the enforcement of the policy was the `moving
force' behind the violation." Crandall v. City of Chicago, 2000 WL 6889948, at *2
(ND Ill., 2000). Plaintiff can do this by alleging "an express
policy that causes a constitutional deprivation," "a widespread
practice that . . . causes a constitutional deprivation and is so
well settled as to constitute a custom or usage with the force of
law," or a constitutional injury that was caused by a person with
"final policymaking authority." Baxter v. Vigo County Sch.
Corp., 26 F.3d 728, 735 (7th Cir. 1994). Moreover, inadequate
police training can serve as the basis for a § 1983 liability but
only when the failure to train amounts to "deliberate
indifference" to the rights of the people with whom the police
come in contact. City of Canton v. Harris, 489 U.S. 378, 388
The Defendants argue that Malden has failed to state a claim
because he has not alleged that a custom or policy of Waukegan is
unconstitutional, a requirement to recover against a
municipality. Malden argues that he has properly alleged a
deprivation of his constitutional rights based on the Waukegan
Police policy. The Complaint specifically alleges that Waukegan
failed "to adequately train, supervise, and control its officers,
such that its failure to do so manifests deliberate
indifference." This allegation alone satisfies the Seventh
Circuit's requirement of notice pleading. All that Malden must do
to state a claim against Waukegan is allege that a policy or
custom was the "moving force" that caused his constitutional
violations. Furthermore, Malden has sufficiently alleged that
Waukegan's "failure to adequately train" amounted to deliberate
indifference, the only requirement for pleadings of such a claim.
Based on the Complaint, Waukegan has notice of what Malden is
alleging against Waukegan in Count III.*fn2 Malden's fourth claim charges Waukegan with the state law claim
for respondeat superior for the actions of Kirby. The principle
of respondeat superior allows a plaintiff to recover from a
municipality for any injury to person or property caused by an
agent of the police department of that municipality if it is
caused while the agent is acting in the scope of his or her
employment. See 65 ILCS 5/1-4-6.
The Defendants argue that Malden has failed to state a claim
for respondeat superior because he has not alleged any torts
were committed by Kirby. Malden argues that macing and inflicting
multiple gunshot wounds upon Malden constitutes tortious conduct
actionable under Illinois law. The Complaint more than
sufficiently alleges that Kirby committed a tort against Malden.
Therefore, the Defendants' Motion to Dismiss Count IV is denied.
Count V charges Waukegan with indemnification of Kirby for his
tortious conduct. The Defendants, in essence, argue that Malden
does not have standing to bring an indemnification claim pursuant
to 65 ILCS 5/1-4-6 and that only after judgment is entered can
Malden sue Waukegan for indemnification. Malden conversely argues
that he has sufficiently stated a claim for indemnification
because he has alleged that "public entities are directed to pay
any tort judgment for compensatory damages for which employees
65 ILCS 5/1-4-6 provides, in pertinent part, that:
In case any injury to the person . . . is caused by a
member of the police department of a municipality
. . ., while the member is engaged in the performance
of his duties as (sic) police officer, and without
the contributory negligence of the injured person
. . ., the municipality . . . shall indemnify the
police officer for any judgment recovered against him
as the result of such injury, except where the injury
results from the willful misconduct of the police officer
. . . The municipality which is or may be liable to
indemnify the police officer shall have the right to
intervene in the suit against the police officer, and
shall be permitted to appear and defend.
"Until a judgment is obtained against the officer, no action,
other than a possible third-party action by the police officer
against the municipality, will lie . . ." Glover v. City of
Chicago, 106 Ill. App.3d 1066, 1073 (Ill.App. 1st Dist. 1982)
(citing Arnolt v. City of Highland Park, 52 Ill.2d (1972)).
In addition to 65 ILCS 5/1-4-6, 745 ILCS 10/9-102 also provides
an avenue for a plaintiff to seek indemnification of a police
officer by the municipality. 745 ILCS 10/9-102 provides that "[a]
local public entity is empowered and directed to pay any tort
judgment or settlement for compensatory damages . . . for which
it or an employee while acting within the scope of his employment
is liable . . ." A municipality cannot be made to pay a judgment
without first determining the liability of its employee. Wilson
v. City of Chicago, 120 F.3d 681, 684 (7th Cir. 1997).
However, a plaintiff is entitled to bring an indemnification
claim against the municipality before a judgment is final against
its employee, see Wilson, 120 F.3d at 685; see also Buttron v.
Sheahan, 2001 WL 111028, at *3 (N.D.Ill.), so long as it arises
from the same case or controversy as the original jurisdiction
claim(s). See 28 U.S.C. 1367; see also Ellis v. Bankhead,
828 F.Supp. 45, 47 (N.D. Ill. 1993).
Malden has sufficiently pled an indemnification claim under §
9-102. Malden alleges that Kirby is or was an employee of the
Waukegan Police Department who was acting within the scope of his
employment in committing the tortious conduct described in the
Complaint and has properly stated a claim for indemnification.
Accordingly, the Defendants' Motion to Dismiss Count V is denied. CONCLUSION
For the reasons stated above, the Defendants' Motion to Dismiss
is granted in part and denied in part. Count II is dismissed.
Malden's Fifth and Fourteenth Amendment claims under Counts I and
III are stricken.