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October 13, 2004.

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


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 all claims.


  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 claim.

  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 (1989).

  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. ...

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