McLIN BY AND THROUGH HARVEY v. City of Chicago, 89 C 9253.

• Decision Date: 18 July 1990
• Docket Number: No. 89 C 9253.,89 C 9253.
• Citation: 742 F. Supp. 994
• Parties: Calvin McLIN, By and Through his guardians and next of kin Reverend and Mrs. HARVEY; and Joseph Weaver, By and Through his guardian and next of kin Dorothy Reese, Plaintiffs, v. CITY OF CHICAGO; Leroy Martin, Superintendent of Police; David Fogel, Administrator, Office of Professional Standards; Kathleen Moore, Chicago Police Officer; James Serio, Chicago Police Officer; Patrick Fitzpatrick; Joseph Johnston; Dan Beyer; Bobby Campbell; James D. McKeowan; David Cobb; John Boyd; Salvador Noceda; and Rigoberto Barajas, Defendants.
• Court: U.S. District Court — Northern District of Illinois

742 F. Supp. 994

Calvin McLIN, By and Through his guardians and next of kin Reverend and Mrs. HARVEY; and Joseph Weaver, By and Through his guardian and next of kin Dorothy Reese, Plaintiffs, v. CITY OF CHICAGO; Leroy Martin, Superintendent of Police; David Fogel, Administrator, Office of Professional Standards; Kathleen Moore, Chicago Police Officer; James Serio, Chicago Police Officer; Patrick Fitzpatrick; Joseph Johnston; Dan Beyer; Bobby Campbell; James D. McKeowan; David Cobb; John Boyd; Salvador Noceda; and Rigoberto Barajas, Defendants.

No. 89 C 9253.

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

July 18, 1990.

Peter J. Schmiedel, People's Law Office, Chicago, Ill., for plaintiffs.

John F. McGuire, Sharon Baldwin, Justin P. Erbacci, Asst. Corp. Counsel, Kelly R. Welsh, Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

I. INTRODUCTION

Plaintiffs Calvin McLin and Joseph Weaver, both of whom are young black men, allege that they were waiting for a bus when two white members of the Chicago Police Department ordered them into a squad car, drove them around, verbally abused them, and ultimately dropped them off in a neighborhood which the officers knew to be hostile and dangerous for blacks. As a result, McLin and Weaver were allegedly assaulted by a group of white and hispanic civilians. Plaintiffs have now filed this civil rights lawsuit against the white and hispanic civilians; the individual police officers allegedly involved in the incident; Leroy Martin, the Superintendent of Police; David Fogel, the Administrator of the Office of Professional Standards ("OPS") of the Chicago Police Department (the "Department"); and the City of Chicago (the "City"). Pending is a motion to dismiss filed by Martin, Fogel and the City. For the reasons stated below, the motion is granted as to Martin and Fogel but denied as to the City.

II. FACTS

In ruling on defendants'¹ motion to dismiss, the Court accepts as true the factual allegations of the complaint. Plaintiffs are young black men of fourteen years of age. On the evening of August 15, 1989, plaintiffs were standing in Chicago in the vicinity of Comiskey Park, waiting for a bus to take them home from a Chicago White Sox baseball game. At about 10:00 p.m., they were approached by white Chicago police officers Kathleen Moore and James Serio. Moore and Serio beckoned to plaintiffs in a demeaning and derogatory manner. Moore and Serio then ordered plaintiffs into their squad car and drove them around while interrogating them. Plaintiffs informed Moore and Serio of their ages and addresses, that they had no prior criminal records, and that they were on their way home from a Chicago White Sox baseball game. While Moore and Serio drove plaintiffs around, they mocked plaintiffs' voices in a demeaning and racially derogatory manner and made racial slurs. Moore, for instance, asked plaintiffs if they had ever had their "ass kicked by a big fat white woman."

Moore and Serio agreed with each other to drop plaintiffs off in a racially hostile area. They then drove plaintiffs to 45th Avenue and Union Avenue, near the Graham School, more than two miles from plaintiffs' homes. Moore and Serio knew that this neighborhood was hostile and dangerous to blacks and that the Graham School was a gathering place for white youths who would attack blacks who entered the neighborhood. Moore and Serio never told plaintiffs where they were or why they were being dropped off in that location.

Moore, at Serio's request, opened the back door of the squad car, struck McLin in the face, and struck Weaver in the neck. The squad car pulled away, and plaintiffs began to walk south on Union Avenue. Plaintiffs were then attacked by white and hispanic youths, who chased plaintiffs while throwing bottles and other objects at them. Plaintiffs began to run, and they were chased by youths who called them "niggers" and other racially derogatory names. The youths threw bottles, sticks and other objects at plaintiffs and sought to catch plaintiffs in order to injure them.

The youths chased plaintiffs to 47th Street and Union Avenue, where they caught McLin. They beat and kicked McLin until he was unconscious. The youths continued to chase Weaver east on 47th Street, throwing objects at him and calling him racially abusive names. Some of the objects struck Weaver, who also fell and injured himself. Weaver continued running for many blocks and eventually eluded his pursuers.

Plaintiffs allege that Moore and Serio were aware of the youths' actions and refused to stop them or to come to plaintiffs' aid.

Count I of plaintiffs' complaint alleges that Moore and Serio are liable pursuant to 42 U.S.C. § 1983 for violating plaintiffs' civil rights. Count II alleges that Moore and Serio are liable under 42 U.S.C. §§ 1983 and 1985(3) for conspiring to violate plaintiffs' civil rights. Count III alleges that Moore, Serio and the civilian defendants are liable under 42 U.S.C. §§ 1983 and 1985(3) for conspiring to violate plaintiffs' civil rights. Count IV alleges that the civilian defendants are liable pursuant to 42 U.S.C. § 1985(3) for conspiring to violate plaintiffs' civil rights. Count V alleges that Moore and Serio are liable pursuant to 42 U.S.C. § 1986 for failing to prevent the conspiracy referred to in Count IV. Count VI alleges that the City is liable for its failure to discipline police officers. Count VII alleges that the City is liable for a practice and policy of a "code of silence" which contributes to unlawful police practices. Count VIII is a state law claim for assault, battery, intentional infliction of emotional distress, and conspiracy. Count IX is a state law claim for ethnic intimidation. Count X alleges that the City is liable for the actions of Moore and Serio which violate state law under a theory of respondeat superior.

III. INDIVIDUAL DEFENDANTS

The complaint does not specify whether Martin and Fogel are sued in their official or their individual capacities. Defendants argue that to the extent Martin and Fogel are named in their individual capacities, they should be dismissed because the complaint does not allege that they had immediate supervisory authority over Moore and Serio or that they had any power to direct the actions of Moore and Serio. Accordingly, defendants argue, plaintiff has not alleged the personal involvement necessary to hold Martin and Fogel liable as individuals. See Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986); Schultz v. Baumgart, 738 F.2d 231, 238-39 (7th Cir.1984). In their response brief, plaintiffs appear to concede this point, arguing only that the lawsuit may proceed against Martin and Fogel in their official capacities. (Mem. in Response at 14.)

Defendants further argue that naming Martin and Fogel in their official capacities is improper. A suit against city officials in their official capacities is in reality a suit against the city. See Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir.1986); Williams v. City of Chicago, 658 F.Supp. 147, 153 (N.D.Ill. 1987). Because the City is already named as a defendant, defendants argue that the presence of Martin and Fogel as defendants in their official capacities would be superfluous. The Court agrees. As one court has stated, where "no claim against officials in their individual capacities was made, a simpler, technically correct and by far preferable structuring would have been to name the City as the sole defendant." Spell v. McDaniel, 824 F.2d 1380, 1396 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988). Because the City is already a defendant, dismissing Martin and Fogel does not prejudice plaintiffs, and it clarifies and streamlines the pleadings. Accordingly, Martin and Fogel shall be dismissed from the case.

IV. CITY OF CHICAGO

The City is liable for the acts of its employees pursuant to 42 U.S.C. § 1983 only if execution of the City's "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The City moves to dismiss Counts V and VI on the ground that plaintiffs have not alleged sufficient facts to support their allegation that their injuries were caused by a policy or custom of the City.

A. Policy or Custom

An express City policy need not be alleged in order for plaintiffs to state a claim which is consistent with Monell. In certain circumstances, a pattern of conduct by non-policy-making municipal employees may rise to the level of a city policy, custom or usage which is sufficient to give rise to municipal liability.

To hold a city liable in such circumstances, the plaintiff must first show a pattern of conduct. A single incident of unconstitutional behavior by a municipal employee is insufficient to hold the city liable. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985). Where the pattern of conduct is sufficiently widespread in terms of duration and/or frequency, it may give rise to an inference of actual or constructive knowledge on the part of the city. See Spell, supra, 824 F.2d at 1387; Williams v. City of Chicago, 658 F.Supp. 147, 152 (N.D.Ill.1987). When the city, possessing such knowledge, fails to act to curb the conduct, the pattern of conduct may be considered a policy or custom attributable to the city if the city's failure to act rises to the level of deliberate indifference to the rights of those who are affected. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1204-05, 103 L.Ed.2d 412 (1989); Spell, 824 F.2d at 1391; Williams, 658 F.Supp. at 154. Finally, the plaintiff must prove that his injury was caused by the particular policy or custom shown. See Sp...