United States District Court, N.D. Illinois, Eastern Division
October 14, 2004.
MAURICE MAYS, Plaintiff,
CITY OF DES PLAINES, ILLINOIS; CITY OF CHICAGO, ILLINOIS; DES PLAINES POLICE OFFICER MICHAEL MEYER (Star #403), B. RUZICKA (Star #425), HARRISON (Star #unknown), SERGEANT PRIM (Star #742), DETECTIVE C. MIERZWA (Star #386), DETECTIVE G. FORTIER (Star #268), all sued in their personal capacities; and CHICAGO POLICE OFFICERS JOHN DOES, all sued in their personal capacities, Defendants.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
Plaintiff Maurice Mays has filed an action under
42 U.S.C. § 1983 against the City of Des Plaines, the City of Chicago, and
various police officers alleging violations of his Fourth, Fifth,
and Fourteenth Amendment rights. This matter is before the Court
on the motion of Defendant City of Des Plaines to dismiss it as a
party pursuant to Fed.R. Civ. Proc. 12(b)(6). For the reasons
discussed below, the motion is granted. BACKGROUND
The following facts are taken from plaintiff's complaint, the
allegations of which are assumed as true for the purposes of a
motion to dismiss. See Bontkowski v. First Nat'l Bank of
Cicero, 998 F.2d 459, 461 (7th Cir. 1993).
The chain of events detailed within the complaint began in the
early hours of April 24, 2003, in Des Plaines. The city's police
department received a call from a resident regarding an attempted
burglary in her garage. The Des Plaines officers named in the
complaint participated in the response to the resident's call in
various capacities. In particular, Defendants Ruzicka and
Harrison chased a man seen running from the residence, and
Ruzicka claimed to have come close enough to be able to see the
man's face. Despite this proximity, the man apparently eluded the
Meanwhile, Defendant Prim discovered a van parked across the
street from the allegedly burgled residence. Inside the van
(which had been stolen from its owner in Northbrook) were several
items later identified as belonging to the owner of the garage.
Also inside was a woman, who informed the officers that the man
they had seen running from the garage lived in a particular area
on the north side of Chicago. Around noon the same day,
Defendants Mierzwa and Fortier visited that area, which contained
an apartment rented by Mays' girlfriend. Upon their arrival at
the girlfriend's apartment building, the detectives saw a car that had been
reported stolen in Des Plaines the same day parked less than a
Based on these facts and some others detailed in the complaint,
the detectives contacted members of the Chicago police
department, and the officers attempted to contact the residents
of the apartment via telephone and by knocking on the front door.
According to the complaint, no response was forthcoming, but an
officer outside the apartment reported seeing movement inside
through a window. One of the detectives, who was inside the
building, claimed to have heard objects being moved around and
clicking noises emanating from inside the front door. The
officers then entered the apartment. Mays contends that, at that
time, he was sleeping inside. He claims that he was still in bed
when the officers entered the bedroom. According to Mays, the
officers had neither a search warrant for the premises nor an
arrest warrant for him. The complaint asserts that Mays had been
in the apartment since the early evening hours of the day before.
The officers took Mays into custody and brought him to a police
station in Des Plaines, where Ruzicka identified him as the
person he had seen near the garage earlier that morning. Mays was
charged with burglary and possession of a stolen vehicle. Unable
to post the money required for release pending trial, he remained
in custody until April 6, 2004. On that date, the state obtained a nolle
prosequi dismissal of the proceeding and Mays was released.
On June 30, 2004, Mays filed suit against both cities as well
as named and unnamed police officers allegedly involved in the
events detailed above. The complaint asserts that Defendants'
actions were in violation of Mays' Fourth, Fifth, Sixth, and
Fourteenth Amendment rights. It also alleges damage to or
wrongful seizure of his personal property. Des Plaines now moves
that it be dismissed from the suit pursuant to Fed.R. Civ. Proc.
12(b)(6), contending that Mays has failed to state a cognizable
claim against it.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the sufficiency of the complaint, not its merits. Gibson
v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).
Nonetheless, in order to withstand a motion to dismiss, a
complaint must allege facts sufficiently setting forth the
essential elements of the cause of action. Panaras v. Liquid
Carbonic Indus. Corp., 74 F.3d 786, 792 (7th Cir. 1996). In
ruling on a motion to dismiss, the court must construe the
allegations of the complaint in the light most favorable to the
plaintiff, and all well-pleaded facts and allegations in the
plaintiff's complaint must be taken as true. Bontkowski,
998 F.2d at 461. A complaint should not be dismissed for failure to
state a claim "unless 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, 78 S. Ct. 99, 102 (1957). With
these principles in mind, we examine the motion before us.
Mays' complaint finds its foundation in 42 U.S.C. § 1983. Every
§ 1983 action must contain at least two elements. See Parratt
v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913 (1981).
First, the conduct complained of must be committed by a person
acting under color of state law. See id. Second, the conduct
must have deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States. See
id. For claims against a municipality, however, a plaintiff
cannot stop with just those two allegations. See Monell v.
Department of Soc. Serv., 436 U.S. 658, 694, 98 S. Ct. 2018,
2038-39 (1978). To state a claim against a municipal entity, a
complaint must allege that the conduct leading to the injury
resulted from enforcement of an express policy, an instance of a
widespread practice that is so permanent and pervasive that it
takes on the force of law, or an action of a person with final
policymaking authority for the municipality. See City of St.
Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926
(1988) (plurality opinion); Pembaur v. City of Cincinnati,
475 U.S. 469, 483, 106 S. Ct. 1292, 1300 (1986) (plurality opinion);
Monell, 436 U.S. at 690, 98 S. Ct. at 2035. In other words, the
governmental entity itself must be a "moving force" for the alleged injury before
liability can attach; otherwise it cannot be fairly said that the
injurious acts are truly those of the municipality. See,
e.g., Bd. of County Comm'r of Bryan County, Okla. v. Brown,
520 U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997).
We do not suggest that a § 1983 complaint, whether directed
toward an individual or a municipality, must satisfy a heightened
standard. See Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 165, 170,
113 S. Ct. 1160, 1163 (1993). However, even under the Leatherman
standard, a § 1983 claim against a municipality must contain
something more than bare allegations of municipal wrongdoing.
See Duda v. Bd. of Educ. of Franklin Park Publ. Sch. Dist.,
133 F.3d 1054, 1061 (7th Cir. 1998). A § 1983 plaintiff, like any
other, must provide enough information in the complaint to alert
the defendant of the gist of the claimed injury. See Perkins
v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991). In the
context of an alleged constitutional violation by a municipal
entity, this means that a plaintiff must include allegations in
the complaint that indicate the existence of a policy or
practice. Otherwise, the complaint against the municipality
would, unacceptably, sound only in respondeat superior. See
Monell, 436 U.S. at 690, 98 S. Ct. at 2035; Strauss v. City of
Chicago, 760 F.2d 765, 768 (7th Cir. 1985). In the present case, Mays' complaint is devoid of any
allegation with respect to the City of Des Plaines, let alone an
allegation that would fall into one of the three categories
detailed above. It contains a description of the events of April
24, 2003, but does not even hint at policies or customs outside
of that incident. Nor does Mays claim that any of the persons
involved are final policymakers for Des Plaines. See Pembaur,
475 U.S. at 483, 106 S. Ct. at 1300; Duda, 133 F.3d at 1061.
Without involvement of such an official, a single incident of
unconstitutional activity by a government employee is
insufficient to show an unofficial policy that could give rise to
municipal liability under § 1983. See, e.g., City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
The only allegation that even arguably connects to the City of
Des Plaines to the conduct complained of is found in ¶ 67 of the
complaint, where Mays states that the Des Plaines police officers
were "acting under color of state law as policemen of the City of
Des Plaines." Even construed in the light most favorable to Mays,
this language points only to an employer-employee relationship
between the city and the alleged wrongdoers, rather than an
indication that the city supplied the impetus for the claimed
tortious behavior. As a result, a material element of the claim
against the City of Des Plaines is missing, and the motion to dismiss Des Plaines
from the suit is granted.*fn1
Based on the foregoing analysis, the motion to dismiss the City
of Des Plaines is granted, without prejudice. If Mays does not
amend his complaint with a cognizable claim against the city,
consistent with his obligations under Fed.R. Civ. Proc. 11
before Tuesday, December 14, the dismissal shall become with