Opinion
IP 00-1211-C T/G
September 21, 2000
ENTRY ON MOTION TO DISMISS
The Plaintiffs, Mari Briggs, Sara Voris, and Mindi Barnett, bring this action under 42 U.S.C. § 1983 against the Defendants, City of Greenwood, Indiana ("City"), City of Greenwood, Indiana Police Department ("Police Department"), and Officer Steven Estrada, alleging violations of their constitutional rights. The Defendants City and Police Department have moved to dismiss the Complaint against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiffs oppose the motion. Having considered the motion, the court rules as follows.
The Facts
The following facts are taken from the Complaint and accepted as true with all reasonable inferences drawn in favor of the Plaintiffs. The Plaintiffs, Mari Briggs, Sara Voris, and Mindi Barnett, are citizens of the State of Indiana and reside in Johnson County. Defendant City is a city in Johnson County. The Defendant Police Department is a department of the City. Defendant, Officer Steven Estrada, is an employee of the City.
On July 29, 1998, while acting within the scope of their duties and employment with the City and the Police Department, Officer Estrada and Officer Eric Klinkowski entered the apartment of the Plaintiffs located at 680 Wooddale Terrace, Greenwood, Indiana.
While in the apartment, Officer Estrada under color of authority as a police officer subjected Sara Voris to a search that required her to expose her breast area, groin area and buttocks. The officer's conduct embarrassed, humiliated, harassed, upset and violated Ms. Voris's constitutional rights. No other officers were present for the search.
There was no reason for the search which was unduly harassing.
On December 1, 1998, Officers Estrada and Klinkowski again entered the Plaintiffs' apartment at Wooddale Terrace. While there, Officer Estrada under color of authority as a police officer subjected Mari Briggs to a search that required her to expose her breast area, groin area, and buttocks. While conducting said search, Officer Estrada touched Ms. Briggs in a rude and insolent manner. His conduct embarrassed, harassed, humiliated, upset and violated the constitutional rights of Ms. Briggs. Also on December 1, an unknown agent of the Defendants under color of authority as a police officer did cause the Plaintiff Mindi Barnett to accompany him while he searched her bedroom. This conduct was unduly harassing and humiliated, frightened and violated Ms. Barnett's constitutional rights.
Analysis
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the court to dismiss a complaint that fails to state a claim upon which relief can be granted. In deciding whether a complaint fails to state a claim, the court accepts the complaint's well pleaded factual allegations as true and draws all reasonable inferences therefrom in favor of the plaintiffs. See DeWalt v. Carter, No. 98-2415, ___ F.3d ___, 2000 WL 1137385, at *2 (7th Cir. Aug. 11, 2000).
A complaint should be dismissed for failure to state a claim only if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. (quotation omitted); Hishon v. King Spalding, 467 U.S. 69, 73 (1984). A complaint need not plead particular legal theories or detailed facts in order to state a claim. See DeWalt, 2000 WL 1137385, at *2. All the rules require is "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993) (citations and internal quotation marks omitted); see Conley v. Gibson, 355 U.S. 41, 47 (1957); see also FED. R. CIV. P. 8(a)(2) (requiring that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ."). Ordinary notice pleading applies to civil rights actions against under Section 1983. See Leatherman, 507 U.S. at 165-66.
The City and Police Department move for dismissal on two grounds. First, that the Complaint fails to allege a factual basis for holding the City liable under Section 1983, and second, that the Police Department lacks the capacity to be sued. The latter argument is easy. The Plaintiffs do not object to dismissal of the Police Department, and the Defendants' motion will be GRANTED as to that defendant.
As for the second argument, in Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91 (1978), the Supreme Court held that a municipality cannot be held liable under Section founded on a theory of vicarious liability or respondeat superior. See also City of Canton v. Harris, 489 U.S. 378, 385 (1989). A municipality cannot not be held liable under Section 1983 unless a municipal policy or custom caused the alleged deprivation of constitutional rights. See Monell, 436 U.S. at 691-92, 694; Kujawski v. Board of Com'rs of Bartholomew County, Ind., 183 F.3d 734, 737 (7th Cir. 1999). A plaintiff may allege a municipal policy or custom in three ways: by claiming an express policy caused the constitutional deprivation, by claiming a widespread practice is so permanent and well settled as to have the force of law caused the deprivation, or by claiming a person with final policymaking authority caused the deprivation. See, e.g., Kujawski, 183 F.3d at 737; McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995); Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994).
Allegations of isolated incidents by non-policymakers do no suffice to assert a municipal policy or custom. See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 821-24 (1985) (holding court committed reversible error in instructing jury that it could infer municipal policy from a single excessive use of force); Gustafson v. Jones, 117 F.3d 1015, 1022 (7th Cir. 1997) (holding officers' allegations of two incidents failed to show the city had a custom or policy that caused their injuries); Doe v. County of Fairfax, No. 99-1893, 99-1894, ___ F.3d ___, 2000 WL 1224160, at *13 (4th Cir. Aug. 29, 2000) (concluding complaint failed to allege a policy or a custom of county based on single search by detective); Denno v. School Bd. of Volusia County, Fla., 218 F.3d 1267, 1277 (11th Cir.) (concluding that "random acts or isolated incidents are insufficient to establish a custom" under Monell), petition for cert. filed, No. 00-306 (U.S. Aug. 25, 2000); cf. Roach v. City of Evansville, 111 F.3d 544, 549 (7th Cir. 1997) (proof of two incidents of alleged constitutional deprivation occurring in the same case and in a short time span insufficient to support inference of a widespread practice).
The Complaint neither alleges an express policy nor that Officer Estrada or any other person who caused an injury is a person with final policymaking authority. It seems that the Plaintiffs intend to allege that the City's liability is founded upon a widespread practice. The Complaint, however, does not sufficiently allege a claim against the City.
Interestingly, though, the Civil Cover Sheet which was filed with the Complaint and signed by the Plaintiffs' attorney, states that the City is "vicariously liable" for the police officer's overreaching search and other actions.
The only incidents the Plaintiffs have alleged concerning unreasonable searches are the two incidents in July and December 1999. Even when read liberally and all reasonable inferences are drawn in the Plaintiffs' favor, the Complaint does not suggest that these two incidents involving the same police officer in a short time period (approximately 4 months) were anything other than isolated incidents. See, e.g., Strauss v. City of Chicago, 760 F.2d 765, 770 (7th Cir. 1985) (affirming dismissal for failure to state a claim against city where plaintiff alleged the city caused unlawful police conduct but did not suggest that single incident was anything other than an isolated one unrelated to municipal policy).
Thus, the Complaint lacks a sufficient factual basis to infer that the City has a widespread practice that is so permanent and well settled as to have the force of law. The Complaint against the City, therefore, cannot survive the Defendants' motion to dismiss.
The Plaintiffs suggest in response to the motion that they can demonstrate an official custom of the City, though they assert no facts in their brief to support this suggestion. Because leave to amend the pleadings "shall be freely given when justice so requires," FED. R. CIV. P. 15(a), however, the court finds that the Plaintiffs shall be granted leave to file, consistent with FED. R. CIV. P. 11, an Amended Complaint.
Conclusion
Because the Plaintiffs concede the Police Department lacks the capacity to be sued, and the Complaint fails to state a claim against the City, the motion to dismiss is GRANTED. The dismissal of the Police Department is with prejudice, however the dismissal of the City is without prejudice to the filing of an Amended Complaint within 15 days of today's date.
ALL OF WHICH IS ORDERED this 21st day of September 2000.