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Wallace Suber v. City of Chicago

May 5, 2011

WALLACE SUBER, PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION AND JODY WEIS, INDIVIDUALLY AND AS SUPERINTENDENT OF THE POLICE DEPARTMENT OF THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff Wallace Suber seeks compensatory and punitive damages under 42 U.S.C. § 1983 against the City of Chicago and Jody Weis (individually and in his official capacity) for alleged violations of Suber's Fourth and Fourteenth Amendment rights.*fn1 Defendants have moved to dismiss [R. 16] the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendants' motion is granted.

I.

At this stage of the litigation, we accept Plaintiff's allegations as true and draw reasonable inferences in Plaintiff's favor. On around May 11, 2008, Wallace Suber was walking in a group of pedestrians on a Chicago street when a Chicago police officer demanded that one of the group stop walking. R. 13, First Am. Compl. ¶¶ 7-8. Suber was not the individual ordered to stop by the officers. Id. ¶ 13. When the person ordered to stop walking began to run, police officers shot him approximately four times. Id. ¶ 9. During the course of the shooting, the officers discharged their weapons in close proximity to Suber and in the direction of himself and others in the group. Id. ¶¶ 10-11. One of the shots traveled past Suber's ear, and his hearing was severely damaged from either the direct discharge of one of the officers' firearms, or the supersonic speed of the bullet. Id. ¶¶ 14-15. After the shooting, Chicago police officers harassed Suber repeatedly. Id. ¶ 16. "Specifically, Plaintiff was told that, 'you're going to get the same treatment that your friend did.'" Id. ¶ 17. Fearing for his life if he remained a resident of Chicago, Suber was forced to move to Minnesota. Id. ¶¶ 19-20.

Suber alleges that before, on, and after May 11, 2008, Defendants failed to properly train "their" Chicago police officers. Id. ¶¶ 22-23. Specifically, Suber contends that Defendants failed to train officers so that innocent bystanders would not be put in peril of great bodily harm and so that officers would not discharge their firearms in close proximity to, or directly at, innocent bystanders. Id. ¶¶ 22-23. Suber claims that Defendants were aware of the police officers' improper conduct during the May 11 shooting and their subsequent harassment and intimidation of Suber, and yet Defendants took no action. Id. ¶¶ 24-25. Thus, Suber claims, Defendants' acts amounted to an official policy or widespread custom or practice. Id. ¶ 26.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). The Seventh Circuit has explained that this rule "reflects a liberal notice pleading regime, which is intended to 'focus litigation on the merits of a claim' rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506,514 (2002)).

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007); McGowan v. Hulick, 612 F.3d 636, 637 (7th Cir. 2010) (courts accept factual allegations as true and draw all reasonable inferences in plaintiff's favor). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. -, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). These allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. And the allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 129 S. Ct. at 1950.

III.

A.

As detailed below, Suber's complaint suffers from three defects requiring dismissal: first, as Defendants argue, the complaint inadequately alleges that there was a deprivation of a constitutional right at all. That inadequacy is fatal as to both the official capacity claim against the City*fn2 and the individual capacity claim as to Defendant Weis. Second, even if an underlying constitutional violation is sufficiently alleged, the complaint inadequately alleges a basis for municipal liability as to the official capacity claim. Finally, again even if a constitutional violation has been adequately alleged, the complaint's allegations are insufficient to state a claim of individual liability as to Defendant Weis.

1.

With regard to the first defect, § 1983 provides a private cause of action against a person, who, acting under color of state law, deprives an individual of any "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (quoting 42 U.S.C. § 1983). But § 1983 is not itself the basis for a constitutional or federal right -- § 1983 simply provides the procedural vehicle (or, put another way, the cause of action) for bringing suit to remedy violations of a right independently premised on the Constitution or a federal law. Graham v. Connor, 490 U.S. 386, 393-94 (1989) ("As we have said many times, is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.") (quotations and citations omitted). Thus, job one in a § 1983 action is to identify the specific constitutional right allegedly infringed. Id. at 394.*fn3

Here, the complaint inadequately alleges the violation of a specific constitutional right. The "Jurisdiction" section of the complaint does contend that jurisdiction is conferred by the Fourth and Fourteenth Amendment, and § 1983. R. 13 ¶ 1. Even setting aside that those constitutional and statutory provisions are not jurisdictional provisions, the complaint goes no further in alleging the constitutional right at issue. On the facts alleged in the complaint, the Fourth Amendment cannot be the source of the constitutional right: in Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989), the Supreme Court explained that a government officer effectuates a seizure, for Fourth Amendment purposes, only when the officer intentionally stops a person's freedom of movement "through means intentionally applied." Even though Brower itself involved a police-established roadblock, and the case thus did involve a Fourth Amendment seizure, the Supreme Court drove the point home in County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998), which held that no seizure, within the meaning of the Fourth Amendment, had occurred when an officer accidentally ...


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