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Hurbert v. City of Galesburg
June 25, 2010
DAMON HURBERT, PLAINTIFF
CITY OF GALESBURG, PHILIP PIEPER, TIMOTHY LOSEY, JASON SHAW, AND CHRISTOPHER HOOTMAN, DEFENDANTS
The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Plaintiff's initial complaint against the defendants was found deficient as a matter of law. See Order (#3). He was given leave to file an amended complaint, which he did. The amended complaint was also found insufficient in all respects except his claim for retaliation against Christopher Hootman. He was given leave to file another amended complaint.
He has now filed his second amended complaint (#7). In that amended complaint, he has stated enough to proceed with claims against Phillip Pieper, Timothy Losey, and Christopher Hootman. He has apparently abandoned his claim for retaliation against Hootman, however; none of the allegations relating to Hootman's post-arrest conduct that were included in the first amended complaint are included in the second amended complaint.
Once again, this complaint contains absolutely nothing about the City of Galesburg. A municipality is not liable for constitutional torts of its employees simply because they were employees. Monell v. Dept of Social Svcs., 436 U.S. 658 (1978); Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005); McGreal v. Ostrov, 368 F.3d 657 (7th Cir. 2004). The second amended complaint is not adequate to allow Plaintiff to proceed against the City.
The only allegation against Jason Shaw is that "Shaw was unconstitutional violating my constitutional rights." (p.9). As the earlier orders advised, a complaint must include enough factual allegations to allow the court to draw a reasonable inference that a defendant might plausibly be liable for injuries. The second amended complaint contains no basis for making such an inference and therefore is not adequate to allow Plaintiff to proceed against Shaw.
Plaintiff now has a choice. He may proceed with his section 1983 claims against Hootman, Pieper and Losey, and abandon his claims against Shaw and the City and his retaliation claim against Hootman, or he may file one more amended complaint. If he chooses to stand on the second amended complaint, he need do nothing. If he wishes to amend his complaint one last time, he is to file it within 14 days of this date. If no amended complaint is filed within that time period, the City and Shaw will be dismissed from this lawsuit, as will the claim for retaliation against Hootman.
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