787 F.2d 200 (7th Cir. 1986), 85-1906, Jones v. City of Chicago

Docket Nº:85-1906, 85-1907.
Citation:787 F.2d 200
Party Name:Anita JONES, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee. Gloria PADILLA, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
Case Date:April 04, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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787 F.2d 200 (7th Cir. 1986)

Anita JONES, Plaintiff-Appellant,


CITY OF CHICAGO, Defendant-Appellee.

Gloria PADILLA, Plaintiff-Appellant,


CITY OF CHICAGO, Defendant-Appellee.

Nos. 85-1906, 85-1907.

United States Court of Appeals, Seventh Circuit

April 4, 1986

Argued Feb. 13, 1986.

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[Copyrighted Material Omitted]

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Stephen G. Seliger, Stephen G. Seliger, Ltd., Chicago, Ill., for plaintiff-appellant.

Ruth M. Moscovitch, Asst. Corp. Counsel, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, RIPPLE, Circuit Judge and ESCHBACH, Senior Circuit Judge.

CUMMINGS, Chief Judge.

Appellants in this consolidated appeal are patients of Chicago public health clinics who claim that a physician sexually assaulted them during the course of gynecological examinations. Both contend that the City of Chicago ("City") and the physician deprived them of their liberty and privacy interests and seek damages under 42 U.S.C. Sec. 1983; appellants also appended various state law tort claims against both the City and the physician. The district court dismissed all claims against the physician in addition to the state claims against the City and granted summary judgment in favor of the City on the Section 1983 claim. Appellants appeal. 1 We affirm the grant of summary judgment. 2

Appellants Anita Jones and Gloria Padilla had been going to the City's neighborhood health clinics for a number of years. During visits in 1981 and 1982, Jones and Padilla were seen by Dr. Luis d'Avis. D'Avis had been employed as a physician with the City's Department of Health ("Department") since October 1, 1980, 3 and was assigned to work at its West Town clinic though on occasion he would fill in at the other neighborhood clinics. On June 11, 1981, Jones reported to the staff of the clinic located at 4942 West Division that d'Avis had sexually assaulted her earlier that day during an examination. The charge triggered an immediate internal investigation, but the investigation was turned over to Chicago's Office of Municipal Investigation ("OMI") 4 the following month. On November 13, 1981, OMI determined that Jones' charge was "not sustained" and informed d'Avis by letter on March 3, 1982.

Meanwhile d'Avis continued his duties as a City public health physician. He saw Gloria Padilla at the West Town clinic on four occasions in 1981 (all after the Jones incident) and once in 1982. Padilla charges that d'Avis sexually assaulted her at the time of her last visit. The incident occurred

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on March 1, 1982, but Padilla did not report the misconduct until August 23, 1982. OMI initiated another investigation of d'Avis; an OMI investigator interviewed Padilla but decided to terminate the investigation (and thus issued a finding of "not sustained") because d'Avis had tendered his resignation and was no longer a City employee. See supra note 3.

Jones filed her civil rights action in federal court on May 11, 1982; Padilla filed hers on September 13, 1983. They both claim that the City failed to monitor and supervise its physicians (and in particular d'Avis) properly and that it had no policy which required physicians to have an attendant in the examination room or to inform female patients of their right to a chaperone's attendance during a pelvic examination; additionally, Padilla charges that the City failed to investigate adequately patient complaints of physician misconduct (notably Jones' charge). In line with the limitations placed on municipal liability under Section 1983, see Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611; Hossman v. Blunk, 784 F.2d 793 (7th Cir.1986) (per curiam), Jones and Padilla claim these acts and omissions constitute policies or customs that resulted in their injuries.

The district court determined that by all accounts d'Avis' assault on Jones was the first of its type ever brought to the City's attention. Under the circumstances, the court found it unnecessary to decide whether the City's failure to require physicians to have chaperones during pelvic examinations or to inquire whether patients desired chaperones departed from community medical standards; given the evidence, the City's culpability for its physician's misconduct was neither grossly negligent nor deliberately indifferent. Jones v. City of Chicago, 608 F.Supp. 994, 1000 (N.D.Ill.1985). The district court also found the Padilla assault essentially indistinguishable from the Jones assault because City officials took the latter charge seriously and conducted an independent investigation in addition to an extensive internal investigation though the City resolved the matter in favor of d'Avis. Id. at 1001-1002. The district court accordingly determined that the City was not culpable under Section 1983 with respect to either assault.

Under Monell v. Department of Social Services, a plaintiff may establish municipal liability for deprivations of a constitutionally protected interest if she can show the existence of a policy or custom and a sufficient causal link between the policy or custom and the constitutional deprivation. 436 U.S. at 690-694, 98 S.Ct. at 2035-2037. 5 Further, Monell 's proscription on vicarious liability or a respondeat superior theory makes plain that the " 'policy or custom' requirement ... was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers." City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 2435, 85 L.Ed.2d 791 (plurality opinion); id. 105 S.Ct. at 2438-2439 (Brennan, J., concurring). A city thus may not be held liable under Section 1983 for every constitutional violation caused by its policies or customs; they must be at fault (or culpable) in some sense for establishing or maintaining the policy or custom. Additionally, it now appears that at least as to certain constitutional deprivations the plaintiff may have to present proof of fault beyond mere negligence on the part of the City in establishing the policy or tolerating the custom. See Daniels v. Williams, --- U.S. ----, 106 S.Ct. 662, 88 L.Ed.2d 662 (prison official's negligent conduct causing unintended loss of or injury to life, liberty or property does not constitute a violation of the Due Process Clause of the Fourteenth Amendment); Davidson v. Cannon, --- U.S. ----, 106 S.Ct. 668, 88 L.Ed.2d 677 (same).

Appellants clearly present no facts that tend to show d'Avis' misconduct "implements

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or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the City]." Monell v. Department of Social Services, 436 U.S. at 690, 98 S.Ct. at 2035-2036. But governmental customs, in contrast to official policies, do not receive "formal approval through ... [the local government's] official decisionmaking channels," Monell v. Department of Social Services, 436 U.S. at 690-691, 98 S.Ct. at 2036; rather, they are simply " 'persistent and widespread ... practices of ... officials.' " Id. at 691, 98 S.Ct. at 2036. The word "custom" generally implies a habitual practice or a course of action that characteristically is repeated under like circumstances. See Webster's Third New International Dictionary of the English Language 559 (unabridged edition) (1963). Plainly, there is evidence of the frequency and pattern of certain practices of employees at the City's neighborhood clinics from which the existence of a custom reasonably can be inferred. See Eric Schnapper, Civil Rights Litigation After Monell, 79 Colum.L.Rev. 213, 229 (1979). The City's admitted practice of having a chaperone available but not in attendance during gynecological examinations (irrespective of whether or not it conformed to community medical standards) was its regular, operating procedure and therefore may establish a custom under Monell. Similarly, the City concedes that it never required its physicians or clinic staff to advise patients that they could have a chaperone present during any examination; it was the usual custom and practice to leave the matter to the physician.

But Monell requires more. At the very least there must be an "affirmative link" between the custom at issue (especially when the custom itself does not establish wrongdoing) and the constitutional deprivation alleged to cast blame on the City. City of Oklahoma City v. Tuttle, 105 S.Ct. at 2436. This is not to say that a city is absolved from fault where it takes no action. To the contrary, inaction in response to misconduct of its employees may result in municipal liability but only where the injury is caused by "faults 'systemic in nature,' " Strauss v. City of Chicago, 760 F.2d 765, 770 (7th Cir.1985), citing Powe v. City of Chicago, 664 F.2d 639, 651 (7th Cir.1981); the isolated act of an employee generally is not sufficient to impose municipal liability. See Monell v. Department of Social Services, 436 U.S. at 694, 98 S.Ct. at 2037 (a municipality cannot be held liable solely because it employs a tort-feasor); cf. Pembaur v. City of Cincinnati, --- U.S. ----, ----, 106 S.Ct. 1292, 1293, 89 L.Ed.2d 452 (1986) ("municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances"); Malak v. Associated Physicians, Inc., 784 F.2d 277, 284 (7th Cir.1986) (single act of high-level policymaker can render local government liable under Section 1983). Further, in situations that call for procedures, rules or regulations, the failure to make policy itself may be actionable. See, e.g., Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981); Murray v. City of Chicago, 634 F.2d 365, 366-367 (7th Cir.1980) (failure of responsible officials to establish appropriate procedures for the prevention of serious malfunctions in the administration of justice implicates dereliction of duty of constitutional dimension for...

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