United States District Court, N.D. Illinois, Eastern Division
June 8, 2005.
ERNEST DARKO, Plaintiff,
CITY OF CHICAGO, CHICAGO POLICE OFFICER BOB SMITH, and OTHER AS-YET UNKNOWN CHICAGO POLICE OFFICERS, Defendants.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants' partial motion
to dismiss on Counts I, IV, V, and VI. For the reasons stated
below, we grant the motion to dismiss in its entirety and dismiss
the remaining claims.
Plaintiff Ernest Darko ("Darko") alleges that he worked for a
bar called Mickey's Snack Bar ("Mickey's) in 2004. Darko alleges
that on the night of February 14, 2004, Darko was working as a
host for Mickey's karaoke night. Darko claims that around
midnight a group of individuals entered Mickey's including Defendant Bob Smith ("Smith") and his fiancé. Smith is a Chicago
Police officer who was off duty at the time. Darko claims that
the members of the group appeared to be intoxicated. Darko
alleges that when Mickey's started to shut down for the night,
Smith became angry while speaking with an employee at the bar.
According to Darko, Darko and his co-workers told Smith to calm
down and Smith in turn knocked Darko to the floor, hit him three
times and pulled at his hair. Darko further alleges that Smith
then released his grip on Darko and began waiving his gun around
in a threatening manner. Darko claims that another person was
able to wrestle the weapon away from Smith. Darko claims that
when the Chicago Police were summoned to the scene, Darko
indicated that he wanted to file charges against Smith for the
alleged assault and battery. According to Darko, the officers
that reported to the scene refused to allow him to file criminal
charges and told him that the matter would be investigated by the
Office of Professional Standards ("OPS"). Darko claims that he
subsequently went to several police district stations and asked
to file charges against Smith. Darko states that he was
repeatedly told that the OPS investigation was the only available
recourse for him. Darko includes in his complaint a claim
alleging a violation of 42 U.S.C. § 1983 ("Section 1983") based
upon alleged excessive force (Count I), a state battery claim
(Count II), a state assault claim (Count III), a Section 1983
conspiracy claim (Count IV), and counts which assert that the
City is subject to the doctrine of respondeat superior of the
state claims and to indemnification (Counts V and VI). The City
has moved to dismiss Counts I, IV, V, VI, and VII and Smith has adopted the
City's motion to dismiss Counts I and IV.
In ruling on a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the
complaint in the light most favorable to the plaintiff, and
accept as true all well-pleaded facts and allegations in the
complaint. Thompson v. Illinois Dep't of Prof'l Regulation,
300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein,
939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint should
not be dismissed for a failure to state a claim "unless 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); See also Baker v.
Kingsley, 387 F.3d 649, 664 (7th Cir. 2004) (stating that
although the "plaintiffs' allegations provide[d] little detail . . .
[the court could not] say at [that] early stage in the
litigation that plaintiffs [could] prove no set of facts in
support of their claim that would entitle them to relief.").
Nonetheless, in order to withstand a motion to dismiss, a
complaint must allege the "operative facts" upon which each claim
is based. Kyle v. Morton High School, 144 F.3d 448, 445-55 (7th
Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir.
1992). Under current notice pleading standard in federal courts a
plaintiff need not "plead facts that, if true, establish each element of a `cause of action. . . .'" See Sanjuan v. American
Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th
Cir. 1994) (stating that a "[a]t this stage the plaintiff
receives the benefit of imagination, so long as the hypotheses
are consistent with the complaint" and that "[m]atching facts
against legal elements comes later."). The plaintiff need not
allege all of the facts involved in the claim and can plead
conclusions. Higgs v. Carter, 286 F.3d 437, 439 (7th Cir.
2002); Kyle, 144 F.3d at 455. However, any conclusions pled
must "provide the defendant with at least minimal notice of the
claim," Id., and the plaintiff cannot satisfy federal pleading
requirements merely "by attaching bare legal conclusions to
narrated facts which fail to outline the bases of [his] claim."
Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained
that "[o]ne pleads a `claim for relief' by briefly describing the
events." Sanjuan, 40 F.3d at 251.
I. Excessive Force Claim (Count I)
Defendants argue that the allegations in the complaint do not
indicate that Smith was acting under the color of state law. A
plaintiff bringing a Section 1983 claim is required to establish
that: 1) his "constitutional rights were violated," and 2) "the
defendant? acted under color of state law." Lawline v. American
Bar Ass'n, 956 F.2d 1378, 1384 (7th Cir. 1992). In the
instant action, even when viewing the facts alleged in a light
most favorable to Darko, Darko does not allege that Smith acted under the color of state law. Instead, the facts alleged in
the complaint clearly indicate that Smith was off duty at the
time in question. Darko alleges that Smith became angry and
entered into a personal disagreement with an employee at
Mickey's. The facts also indicate that as part of that personal
dispute, Smith struck Darko and waived around his weapon. There
are no facts that indicate that Smith was using any of his powers
as an officer when engaging in the alleged fight. There are
absolutely no allegations that would indicate that Smith was
acting under the color of state law or facts that would even
allow for a reasonable inference that Smith was acting under the
color of state law. Therefore, we grant Defendants' motion to
dismiss the excessive force claim (Count I). We also grant
Defendants' motion to dismiss the Section 1983 conspiracy claim
since it is premised upon an alleged constitutional violation
contained in Count I.
II. Section 1983 Conspiracy Claim
Defendants seek a dismissal of the Section 1983 conspiracy
claim. Darko alleges in his conspiracy claim that unidentified
officers conspired with Smith to refuse to investigate Darko's
assault and battery charges brought against Smith. Such
allegations do not state a constitutional violation which is
required for a Section 1983 claim. Lawline, 956 F.2d at 1384;
See also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(stating that "in American jurisprudence at least, a private
citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another."); Jacobson v. National R.R. Passenger Corp., 1999 WL
1101299, at *10 (N.D. Ill. 1999) (citing cases in support of
holding that there is no constitutional right to a police
investigation). Therefore, we grant Defendants' motion to dismiss
the Section 1983 conspiracy claim.
III. Municipal Liability
Defendants move to dismiss the Section 1983 claims to the
extent that the claims are brought directly against the City. The
doctrine of respondeat superior cannot be utilized to hold
local governmental units liable for Section 1983 violations.
Monell v. Department of Social Services, 436 U.S. 658, 691
(1978). A municipal governmental unit cannot be held liable under
Section 1983 "unless the deprivation of constitutional rights is
caused by a municipal policy or custom." Kujawski v. Board of
Comm'rs. Of Bartholomew County, Indiana, 183 F.3d 734, 737 (7th
Cir. 1999). A local governmental unit's unconstitutional policy,
practice or custom can be: "(1) an express policy that causes a
constitutional deprivation when enforced; (2) a widespread
practice, that, although unauthorized, is so permanent and
well-settled that it constitutes a `custom or usage' with the
force of law; or (3) an allegation that a person with final
policymaking authority caused the injury." Chortek v. City of
Milwaukee, 356 F.3d 740, 748 (7th Cir. 2004).
Defendants correctly point out that Darko has failed to allege
any facts that would indicate that a City policy, custom, or
practice was responsible for the alleged misconduct of Smith. Also, as is indicated above, even when
viewing the facts alleged in a light most favorable to Darko,
there is no constitutional violation alleged by Darko, because
under Darko's own set of facts, Smith was clearly not acting
under the color of state law. Therefore, we grant Defendants'
motion to dismiss the Section 1983 claims brought against the
IV. Remaining Claims
In regards to the remaining state battery and assault claims,
the Seventh Circuit has stated that where a court dismissed a
federal claim and the sole basis for invoking federal
jurisdiction is now nonexistent, that court should not exercise
supplemental jurisdiction over remaining state law claims.
Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294, 300 (7th
Cir. 2003) (stating that if there is a dismissal of the original
jurisdiction claim and only a supplemental jurisdiction claim
remains "the sole basis for invoking federal jurisdiction is
nonexistent and the federal courts should not exercise
supplemental jurisdiction over his remaining state law claims.");
Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (7th
Cir. 1994) (stating that "the general rule is that, when all
federal-law claims are dismissed before trial, the pendent claims
should be left to the state courts."); Timm v. Mead Corp.,
32 F.3d 273, 277 (7th Cir. 1994) (stating that in exercising
discretion, the court should consider a number of factors,
including "the nature of the state law claims at issue, their
ease of resolution, and the actual, and avoidable, expenditure of judicial resources. . . ."). We have granted Defendants' motion
to dismiss all of the Section 1983 claims and Darko does not
indicate in his complaint that this court has diversity subject
matter jurisdiction over the remaining state claims. (Compl. Par.
2). We find it appropriate to dismiss the state assault and
battery claims (Counts II and Ill). In regards to the respondeat
superior count in the complaint (Count V), as is indicated
above, the doctrine of respondeat superior is not applicable to
Section 1983 claims, Monell, 436 U.S. at 691. Also, to the
extent that the respondeat superior count relates to the state
claims the count is no longer applicable since we have dismissed
the state claims. For the same reason, we dismiss Count VI which
addresses indemnification for the state law claims. Therefore, we
deemed it prudent to dismiss all of the remaining claims.
Based on the foregoing analysis, we grant Defendants' partial
motion to dismiss and dismiss all of the remaining claims.
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