Moon v. Winfield, 73 C 1855.

• Decision Date: 07 December 1973
• Docket Number: No. 73 C 1855.,73 C 1855.
• Citation: 368 F. Supp. 843
• Parties: Dianne MOON et al., Plaintiffs, v. Michael WINFIELD et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

368 F. Supp. 843

Dianne MOON et al., Plaintiffs, v. Michael WINFIELD et al., Defendants.

No. 73 C 1855.

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

December 7, 1973.

Thomas R. Meites, Robert C. Howard, Chicago, Ill., for plaintiffs.

William Leonard, pro se.

Edwin A. Gausselin, Asst. Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION

Motion for Summary Judgment

MAROVITZ, District Judge.

This is a civil action for damages based upon a case of alleged police brutality, and predicated on the Fourth, Fifth, and Fourteenth Amendments to the U. S. Constitution and 42 U.S.C. § 1983. The defendants in this case are Michael Winfield, the patrolman charged with the actual brutalization; William Leonard, the patrolman who, it is alleged, witnessed Winfield's actions but did nothing to prevent or halt them; and James B. Conlisk, Jr., Superintendent of Police of the City of Chicago at the time of the foregoing occurrence and for some time prior thereto. Of Conlisk, the plaintiffs complain as follows:

At the time of the foregoing occurrence and for some time prior thereto, defendant CONLISK was the Superintendent of Police of the City of Chicago, and had the duty to discipline and control Chicago police officers and to initiate discharge proceedings against officers whose conduct warranted termination of their police employment. On information and belief, prior to the occurrence set forth above defendant WINFIELD had been the subject of a large number of complaints of abusive conduct toward citizens and otherwise had complied an employment history indicating that he was likely to engage in abusive conduct toward citizens. Despite having notice of WINFIELD's complaint record and employment history, CONLISK failed to seek WINFIELD's discharge, to assign him to duties in which he would not have the opportunity to mistreat citizens, or otherwise to prevent WINFIELD from engaging in abusive conduct toward citizens.

I.

Defendant Conlisk now moves for summary judgment, stating as grounds therefore: (1) that he did not personally participate in or direct Winfield's beating of the Moons, (2) that the doctrine of respondeat superior does not apply in a § 1983 action, and (3) that Conlisk may not be held accountable in this cause of action for damages under the Civil Rights Act for his alleged failure to train, supervise, or discipline the defendants who were employed by the City of Chicago.

Plaintiffs have no dispute with defendant Conlisk as to the first two grounds; however, the authorities are conclusive that Conlisk can be held liable under § 1983 for his own personal negligent conduct which was a proximate cause of the Moons' injuries. Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969); Roberts v. Williams, 456 F.2d 819 (5th Cir. 1972); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969); Huey v. Barloga, 277 F.Supp. 864 (N.D.Ill.1967); Carter v. Carlson, 447 F.2d 358 (D.C.Cir. 1971).

The court in Byrd said, "We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction misfeasor officers are committed." 466 F.2d at 11. The court said, too:

Negligent liability generally arises in the context of affirmative action. The defendant is deemed culpable where he has acted and his acts do not conform to the standard of a reasonably prudent man as judged against the community ideal of reasonable behavior. See Prosser, Torts §§ 53, 54 (3d ed. 1964). The defendant is not usually held to be responsible for inaction. However, where the defendant is under some affirmative duty to act and he fails to act accordingly, he may be held negligently responsible for his omission. He is responsible if his omission is unreasonable in light of the circumstances. Huey v. Barloga, 277

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