Dunmars v. City of Chicago

• Decision Date: 24 September 1998
• Docket Number: No. 97 C 6553.,97 C 6553.
• Citation: 22 F.Supp.2d 777
• Parties: John DUNMARS, Plaintiff, v. THE CITY OF CHICAGO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

22 F.Supp.2d 777

John DUNMARS, Plaintiff, v. THE CITY OF CHICAGO, et al., Defendants.

No. 97 C 6553.

United States District Court, N.D. Illinois, Eastern Division.

September 24, 1998.

Karen McNulty Enright, Winters, Enright & Carris, L.L.C., Chicago, IL, for Plaintiff.

Brian L. Crowe, City of Chicago, Law Department Corporation Counsel, Chicago, IL, Erik J. Lillya, Robert Thomas Shannon, City of Chicago, Department of Law, Chicago, IL, Thomas Joseph Platt, Robert W. Barber, Michael P. Sheehan, City of Chicago, Department of Law, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court are two motions filed by defendants City of Chicago and individual police officers. The first motion is the City of Chicago's motion to dismiss plaintiff Dunmars' complaint and the second motion is the individual defendant police officers' motion to dismiss plaintiff Dunmars' complaint. Both motions are pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6). For the reasons that follow, the court grants the City of Chicago's motion to dismiss and grants the individual defendants' motion to dismiss.

I. BACKGROUND

The complaint alleges the following facts which, for the purposes of ruling on this motion, are taken as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The individual defendants are all police officers employed by the City of Chicago. On the morning of July 3, 1994, plaintiff John Dunmars was arrested by defendant police officers M. Long (Star # 15742) and F. Messina (Star # 12435). At the time, the arresting officers and other defendant officers, including Sergeant McDermot (Star # 933) and Sergeant Gonzalez (Star # 640) and an unknown watch commander,¹ were informed that Dunmars had been struck on the head with a baseball bat. The officers saw that Dunmars had sustained a large open wound to the side of his head and was physically and mentally affected as a result. Despite Dunmars' injuries, the defendant officers transported him to the Area 17 police headquarters without allowing him to first receive medical treatment.

At some time later that same day, the defendant officers transported Dunmars to Swedish Covenant Hospital for medical treatment. Dunmars refused treatment. Thus, the officers transported Dunmars back to the district where he remained in custody until 9:00 p.m. The officers then released Dunmars from custody and carried him into a waiting automobile. Dunmars alleges that, as a consequence of the lack of proper medical care, he suffers from memory loss, continuing disorientation, "persistent horrible dreams," and an inability to walk normally.

On July 3, 1996, Dunmars filed a complaint in state court directed at the City of Chicago, Swedish Covenant Hospital and several known and unknown police officers alleging a violation of 42 U.S.C. § 1983 and two state laws. In August of 1996, the case was removed to the United States District Court for the Northern District of Illinois and assigned to this court. Dunmars voluntarily dismissed his complaint on November 5, 1996. Under the Illinois savings provision, Dunmars had until November 5, 1997 to refile his claim. On September 16, 1997, Dunmars presented a one paragraph pro se complaint to the Clerk of the Court for the Northern District of Illinois ("Clerk"). Dunmars named defendants the City of Chicago ("City"), the Chicago Police Department ("Police Department"), Officer Messina, and Officer Long.² The case was assigned to U.S. District Judge Elaine Bucklo, who granted Dunmars' application to proceed in forma pauperis. In February of 1998, Judge Bucklo appointed counsel to represent Dunmars. On April 22, 1998, Dunmars filed a three-count amended complaint and added defendants Sergeant McDermot, Sergeant Gonzalez and an unnamed watch commander. Count I was filed under 42 U.S.C. §§ 1983 and 1988 and alleges violation of Dunmars' Fourth, Fifth, Eighth, and Fourteenth Amendment rights. Counts II and III allege state law claims of breach of duty and willful and wanton misconduct. Pursuant to Local General Rule 2.21(d)(2), Judge Bucklo reassigned the case to this court on May 27, 1998 as a refiling of a previously dismissed case.

Officers Long and Messina received copies of a summons and the amended complaint on April 28, 1998 and May 8, 1998, respectively. The Office of the Corporation Counsel for the City of Chicago received a copy of the amended complaint by certified mail on April 24, 1998. The court has subject matter jurisdiction over the federal claim pursuant to 28 U.S.C. § 1331 and over the state law claims pursuant to 28 U.S.C. § 1367.

II. DISCUSSION

A. Standard for deciding a Rule 12(b)(6) motion to dismiss

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED.R.CIV.P. 12(b)(6); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). However, the court may dismiss the complaint only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Even under the liberal notice pleading standard of the Federal Rules of Civil Procedure, however, a complaint must include either direct or inferential allegations respecting all material elements of the claim asserted. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). Bare legal conclusions attached to narrated facts will not suffice. Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir.1985).

B. Proper defendants

As mentioned previously, on September 16, 1997, Dunmars completed two separate complaints and submitted them to the Clerk. The complaints were unable to be filed at that time because Dunmars' in forma pauperis application had yet to be approved. The first 1997 complaint named the City and the Police Department as defendants. The second 1997 complaint named the Police Department and Officer Star Nos. 12435 and 15742 as defendants. Dunmars and the defendants disagree as to which of the two complaints was properly filed with the Clerk.

The court will consider Dunmars' two 1997 complaints and allow the defendants listed on both of the complaints as proper defendants in this case. The court reaches this decision for the following two reasons. First, on September 16, 1997, when Dunmars filed the two complaints, he was not represented by counsel. The court recognizes the special deference that it is required to give pro se plaintiffs. See Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996). Second, Dunmars listed all four of the defendants on the Civil Cover Sheet which he completed at the time he submitted his complaints to the Clerk. Apparently, Dunmars intended all four of the parties to be defendants in this case. Therefore, the court finds that the City, the Police Department, Officer Long, and Officer Messina were properly listed as defendants on Dunmars' September 16, 1997 complaint.

C. The Chicago Police Department is a nonsuable entity

Dunmars names the Police Department as one of the defendants. The City argues that, to the extent that Dunmars attempts to direct any claims against the Police Department, those claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because the Police Department is not a suable entity. See Williams v. Hutchens, 870 F.Supp. 857, 860 (N.D.Ill.1994). Dunmars concedes in his response that the Police Department does not have a separate legal existence from the City and agrees to dismiss the Police Department as a party. Accordingly, the court dismisses it as a named party.

D. Service of process

The City next argues that the complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) because it did not receive proper service of process under Federal Rule of Civil Procedure 4(m). For the reasons outlined below, the court grants the City's motion to dismiss.

Rule 4(m) provides that service of process shall be "made upon a defendant within 120 days after the filing of the complaint." FED. R.CIV.P. 4(m). Rule 4(j) mandates that service upon a local government shall be effectuated by delivering a copy of the summons and complaint to the local government's chief executive officer or in a manner prescribed by the law of the state. FED.R.CIV.P. 4(j). Pursuant to § 5/2-211 of the Illinois Code of Civil Procedure, service may only be effectuated upon the City by leaving a copy of the summons and complaint with the mayor or city clerk. 735 ILL.COMP.STAT. 5/2-211.

Dunmars sent a copy of the amended complaint by certified mail to the Office of the Corporation Counsel for the City of Chicago. Dunmars admits in his response to the City's motion to dismiss that service was not properly effectuated on the City but argues that the City nonetheless had knowledge of the suit. Actual knowledge of the suit, however, will not cure defective service. Friedman v. Estate of Presser, 929 F.2d 1151, 1155 (6th Cir.1991).

It is undisputed that service of process was not properly made upon the City within the 120 day period established by Federal Rule of Civil Procedure 4(m), and was still not properly made at the time of defendants' reply, thus dismissal is required unless Dunmars can show "good cause" why service was not made within the required period. FED. R.CIV.P. 4(m). Dunmars has made no showing of good cause for not serving the City within 120 days and he did not obtain an extension of time from the court in which to do so.

Accordingly, the City's motion...