Hall v. Sanchez

• Decision Date: 16 March 1989
• Docket Number: No. 88 C 8278.,88 C 8278.
• Citation: 708 F. Supp. 922
• Parties: Timothy HALL, Plaintiff, v. Daniel SANCHEZ, Defendant.
• Court: U.S. District Court — Northern District of Illinois

708 F. Supp. 922

Timothy HALL, Plaintiff, v. Daniel SANCHEZ, Defendant.

No. 88 C 8278.

United States District Court, N.D. Illinois, E.D.

March 16, 1989.

Steven B. Muslin, Michael Wilkie, Steven B. Muslin, Ltd., Chicago, Ill., for plaintiff.

Jonathan P. Siner, Judson Miner, Office of Corp. Counsel, Chicago, Ill., for defendant.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Plaintiff Timothy Hall has sued defendant Daniel Sanchez, a City of Chicago ("City") police officer, under 42 U.S.C. § 1983 and Illinois common law for allegedly shooting him at point blank range while plaintiff was panhandling on Belmont Avenue in Chicago, Illinois. Defendant answered the federal claim, but moved for dismissal of the two state law claims on the grounds that plaintiff failed to give notice of his claims within one year as required by the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("the Tort Immunity Act"), Ill.Rev.Stat. ch. 85, ¶¶ 8-102, 8-103.¹ For the reasons set forth below, the motion is denied.

I.

Plaintiff alleges that the incident at issue here occurred on October 23, 1986. According to the complaint, plaintiff was panhandling when he came across defendant. The complaint does not say how defendant was dressed, but it does allege that he was "a duly appointed and acting police officer in the City of Chicago."

When plaintiff asked defendant for spare change, defendant became enraged, grabbing plaintiff and placing him in a choke hold. Plaintiff pulled away and attempted to defend himself by assuming a karate stance. At this point, defendant pulled out a gun and identified himself as a Chicago police officer. Plaintiff began to put his hands over his head, but defendant fired his weapon, hitting plaintiff in the chest.

In Count I, plaintiff alleges that defendant violated his rights under the Fourth and Fourteenth Amendments of the federal Constitution; in Count II, plaintiff alleges that defendant's acts were negligent; in Count III, that they constituted an assault and battery.

II.

Defendant has moved to dismiss Counts II and III on the grounds that plaintiff failed to give the City notice of his claims within one year of the date of the incident. Paragraph 8-102 of the Illinois Tort Immunity Act provides that:

Within 1 year from the date that the injury or cause of action ... was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting within the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whose employee the action is contemplated a written statement describing the incident and the nature of the alleged injury.²

Paragraph 8-103 provides that if the notice required by ¶ 8-102 is not served:

Any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom the cause of action accrued shall be forever barred from further suing.

Plaintiff did not allege in his complaint that he gave the required notice to defendant or the City, and concedes in his briefs that he did not do so. Nevertheless, plaintiff maintains that dismissal at the pleading stage is inappropriate because ¶¶ 8-102 and 8-103 apply only to acts committed by a government employee "while acting within the scope of his employment as such employee." According to plaintiff, although the complaint alleges that at the time of the incident defendant was acting under color of state law and was "a duly appointed and acting police officer in the City of Chicago," these allegations do not necessarily mean that defendant was acting within the scope of his employment when he fired his weapon.

Defendant does not dispute that Rule 8(e)(2) of the Federal Rules of Civil Procedure would permit plaintiff to set forth inconsistent allegations in his complaint, so that plaintiff could have alleged in Count I that defendant's acts were within the scope of his employment, but then alleged in Counts II and III that they were not. Defendant insists, however, that this is not what plaintiff has done.

Paragraph 4 of Count I of the first amended complaint alleges that "at all relevant times the defendant ... was a duly appointed and acting police officer in the Chicago...." Plaintiff specifically incorporates paragraph 4 of Count I as paragraph 4 of Counts II and III. According to defendant, this paragraph amounts to an allegation that his acts were within the scope of his employment as a police officer, and therefore vitiates plaintiff's argument that he has alleged conduct outside the scope of defendant's employment.

Defendant bolsters his argument with a number of tangential references to other aspects of Illinois law. First, defendant notes that plaintiff never served defendant personally, but served only the Office of the Superintendent of the Chicago Police Department. Defendant argues that although such service suffices to acquire personal jurisdiction over defendant for claims against him in his capacity as a police officer — i.e., for acts he committed within the scope of his employment — it does not suffice to acquire personal jurisdiction over him for claims outside the scope of his employment.

Defendant also notes that the City of Chicago, through the Corporation Counsel, has appeared for defendant, and that it may do so under the Illinois indemnity statute only if defendant is being sued for acts committed while acting within the scope of his employment. See Ill.Rev.Stat. ch. 85, ¶ 2-302. Defendant argues that because his obligation to secure independent counsel as well as his potential personal liability turn on the nature of the allegations against him, plaintiff should have the burden of specifically pleading whether or not the claims are predicated on actions within the scope of defendant's employment. Since plaintiff did not do so here, defendant contends that his state law claims should be dismissed.

What both parties noticeably do not do, however, is to provide any authority for the arguments they make. This omission is particularly significant here, for in Walsh v. City of Chicago, ___ F.Supp. ___ 1988 U.S.Dist.LEXIS 11093 (N.D.Ill. September 30, 1988), this court followed Judge Shadur's ruling in Santella v. Grishaber, 672 F.Supp. 321, 325-26 (N.D.Ill.1987), that ¶¶ 8-102 and 8-103 "apply only to suits brought against municipal employees in their official capacities." Walsh, slip op. at 8. Since plaintiff's claims here, whether or not construed as alleging activity within the scope of defendant's employment, are directed only against defendant in his individual capacity, those two cases would appear to defeat defendant's argument at the outset.

Yet, plaintiff did not make this argument, and this court's review of the relevant case law indicates that the court should not have followed Judge Shadur on this score.³ Paragraph 8-102, by its terms, applies to civil actions against "against a local public entity, or against any of its employees whose act or omission committed while acting within the scope of his employment as such employee." The dual purposes of the statute are to "encourage an early investigation and prompt settlement of meritorious claims and to provide government entities with knowledge of the approximate number of claims against them." Johnson v. King, 55 Ill. App.3d 336, 341, 13 Ill.Dec. 323, 371 N.E.2d 18 (1977).

Although a suit against a government employee in his individual capacity differs from one against the employee in his official capacity inasmuch as the former does not automatically seek recovery against the government entity, Illinois law makes government entities liable for individual capacity claims when those claims are predicated on an employee's acts within the scope of his employment. See Ill.Rev.Stat. ch. 85, ¶ 9-102. Thus, the policies mandating notice for claims against public entities also pertain to suits against public employees for acts within the scope of their employment, and Illinois courts have accordingly held that ¶¶ 8-102 and 8-103 apply to actions against government employees in their individual capacities so long as the alleged misconduct is within the scope of their employment. See Johnson v. King, 55 Ill.App.3d at 340-41, 13 Ill.Dec. 323, 371 N.E.2d 18; Ramos v. Armstrong, 8 Ill. App.3d 503, 289 N.E.2d 709 (1972); Dear v. Locke, 128 Ill.App.2d 356, 262 N.E.2d 27 (1970); Liss v. Poviliaitis, 1987 U.S.Dist. LEXIS 2755 (N.D.Ill. April 9, 1987) 1987 WL 9299.

Given this reading of ¶¶ 8-102 and 8-103, the only question that remains is whether Counts II and III of plaintiff's amended complaint may be read as alleging acts outside of the scope of defendant's employment as a police officer. If so, then plaintiff may proceed on his two state law claims; if not, then plaintiff will either have to amend these claims or suffer their dismissal.

It is by now well-settled that in ruling on a motion to dismiss, the pleadings must be liberally construed. See Fed.R. Civ.P. 8(f). At the same time, however, a complaint must give notice to the defendants of the claims against which they must defend. Defendant argues that the plaintiff violated the latter mandate by failing to set forth in his pleadings whether his claims were for conduct within the scope of defendant's employment.

Although this court is aware of no case directly on point, a useful analogy can be drawn from those civil rights cases in which plaintiffs fail to specify whether they are suing the defendants in their individual or official capacities. In those cases,...