Opinion
No. 02 C 391
February 28, 2002
MEMORANDUM ORDER
In response to this Court's January 22, 2002 memorandum opinion and order ("Opinion"), Tommie Bivens ("Bivens") has timely submitted a self-prepared Amended Complaint in which he now names the Village of Oak Lawn ("Oak Lawn") and two unidentified Oak Lawn police officers ("John Doe 1" and "John Doe 2") as defendants. This memorandum order deals with the posture of the case as affected by Bivens' filing of the Amended Complaint.
This Court has already obtained the name of this member of the trial bar to represent Bivens pro bono publico:
Ronald L. McPheron, Esq. McPheron Law Firm 70 West Madison Street, 14th Floor Chicago IL 60602
At this point attorney McPheron is expected to take over, including his making appropriate arrangements for the service of process by the United States Marshal's Service (see Fed.R.Civ.P. ("Rule") 4(c)(2)).
To begin with, any arguable 42 U.S.C. § 1983 ("Section 1983") claims by Bivens would not be viable against Oak Lawn itself under the allegations of the Amended Complaint. Nothing that he has alleged indicates any direct involvement on its part that would avoid the impact of Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691 (1978) in precluding municipal liability under Section 1983.
Just as this Court stated in Opinion 3 n. 1, it continues to express no view as to the sufficiency of Bivens' claim against the Oak Lawn officers.
But Oak Lawn will nonetheless be retained in the case at this point for two reasons that are consistent with the generous reading called for by the combination of Hishon v. King Spralding, 467 U.S. 69, 73 (1984) andHaines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). Here they are:
1. Bivens may, consistently with his allegations, couple his suit against the officers with a comparable state law claim (one that may be predicated on respondeat superior principles) against Oak Lawn itself — see 28 U.S.C. § 1367(a).
2. Even if such a direct claim against Oak Lawn were to prove nonviable, it will be required to stay in the case at least long enough to provide any discovery needed to enable Bivens' counsel to obtain the identification of the two presently unnamed Oak Lawn officers.
In terms of timeliness, the incident on which Bivens sues allegedly took place on January 26, 2001 or at some point thereafter. Although the Amended Complaint was received in the Clerk's Office on February 5, 2002, the original Complaint had been received on January 16, 2002. If it were to turn out that a one-year statute of limitations is potentially applicable to any claim against Oak Lawn, the relation-back provisions of Fed.R.Civ.P. 15(c) would have to be considered.