Opinion
Case No. 02 C 7680
September 30, 2003
ORDER
John Doe, through his father Bill Doe, filed a complaint alleging violations of 42 U.S.C. § 1983 and various state law tort claims against the V. of T. ("Village"), J.K. ("Fire Chief), J.C.S. ("Village President"), and the Board of Fire and Police Commissioners of the V. of T. ("Board"). The Village, the Village President and the Board have moved to dismiss all counts against them. For the reasons explained below, the motion is granted in part and denied in part.
Analysis
A complaint can be dismissed for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). However, "a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spaulding, 467 U.S. 69, 73 (1984). A complaint need only set out "a short and plain statement showing the plaintiff is entitled to relief, the purpose of which is to give the defendant notice of the claims and the grounds they rest upon." Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002) (citing Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993)). When evaluating a 12(b)(6) motion to dismiss, courts must accept the well-pled allegations of the plaintiff's complaint as true and construe any ambiguities in favor of the plaintiff. Id.
Background
In November 2001, then sixteen-year old john Doe participated in the Village's Fire Cadet Training Program, an extracurricular program offered to minors who are between 14 and 18 years of age. The program was run by the Fire Chief, In November and December 2001, the Fire Chief made numerous suggestive statements and sexual comments to plaintiff, In December 2001, the fire Chief, while driving the plaintiff from one firehouse to another, stopped at the Fire Chief's residence. The Fire Chief then ordered plaintiff to enter his house and performed forced oral sex on the plaintiff.
42 U.S.C. § 1983: Counts 15 and 16
While plaintiff has brought two claims (15 and 16) against the defendants under 42 U.S.C. § 1983, the court cannot make out a difference between the two and therefore the § 1983 analysis applies to both.
There is no heightened pleading standard for civil rights claims alleging liability under § 1983. Leatherman, 507 U.S. at 164. It is well-settled that there is no vicarious liability, or respondeat superior liability, against local governmental entities. Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002). Instead, a local municipality can be liable under § 1983 only if: (1) the defendant had an express policy that, when enforced, causes a constitutional deprivation; (2) the defendant had a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage within the force of law; or (3) plaintiff's constitutional injury was caused by a person with final policymaking authority." McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). In this case, plaintiff has not alleged the existence of an express policy or the involvement of a final policymaker. Thus, the pertinent inquiry is whether plaintiff has alleged a widespread practice that, although not express, has the force of law.
As an initial matter, Doe's § 1983 claims against the Village President are dismissed. Doe sued the Village President both in his individual and official capacities. Official capacity suits are actions against the government entity of which the official is a part. Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). Therefore, Doe's claim against the Village President is unnecessary as he has also sued the Village. In addition, Doe's claim against the Village President in his individual capacity also fails. In order to hold a defendant individually liable, a plaintiff must establish that the defendant was personally responsible for the deprivation of a constitutional right. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994). "[A]n official satisfies the personal responsibility requirement of section 1983 . . . if the conduct causing the constitutional deprivation occurs at [his] direction or with [his] knowledge and consent." Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985) (quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982)). Here, Doe has not made any allegations suggesting that the Village President directed the Fire Chief to sexually assault plaintiff, or otherwise had any knowledge of the assault, In light of this, Doe's § 1983 claims brought against the Village President in his individual capacity also fail.
Doe alleges that he was deprived of his liberty without due process of law in violation of the 14th Amendment by the Village and the Board. Specifically, Doe alleges that the Village and the Board had a policy of encouraging rather than discouraging sexual abuse and sexual assault of minors. This is sufficient to state a claim under the liberal federal notice pleading system. A "plaintiff need not plead facts; he can plead conclusions." McCormick, 230 F.3d at 323-24 (quoting Jackson v. Marion Cty., 66 F.3d 151, 153-54 (7th Cir. 1995)). Boilerplate allegations concerning a policy or practice are sufficient to survive a motion to dismiss. Id. Doe's conclusory allegation that the Village and the Board had a policy of encouraging sexual abuse is sufficient to put the defendants on notice of the claims against them. Id. Doe need not plead evidence because the Federal Rules of Civil Procedure "do not permit the courts to dismiss § 1983 municipal liability claims for lack of factual specificity. . . ." Id. at 325 (citing Leatherman, 507 U.S. at 168-69). Instead, "federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later." Id. (quoting Leatherman, 507 U.S. at 168-69) (internal quotation marks omitted). Therefore, Counts 15 and 16 survive as to the Village and the Board.
Because the court is analyzing a motion to dismiss (and chooses not to convert this to a motion for summary judgment), the court has not considered the deposition transcripts submitted by plaintiff.
Federal Rule of Civil Procedure 11 provides another control mechanism.
State tort claims: Counts 6, 7, 9, 10, 12, and 13
Plaintiff claims that the Village President (Counts 6 and 7), the Village (Counts 9 and 10), and the Board (Counts 12 and 13) are liable for his injuries based on the tort theories of negligence and reckless infliction of emotional distress. Doe asserts that defendants breached their duty to provide ordinary care and protection to him as a minor participating in the Fire Cadet program by recklessly hiring, negligently supervising, and wrongfully retaining the Fire Chief.
Though it is true that a local government and its employees may be liable in tort, the Illinois Local Governmental and Governmental Employee Tort Immunity Act ("Immunity Act") places limits on that liability. Relevant to the charges against defendants in this case, § 2-201 of the Immunity Act shields certain public entities and employees from liability for injuries resulting from "the determination of policy or the exercise of discretion, " provided their complained-of conduct was both discretionary and involved a public choice. 745 ILCS § 10/2-201; Harinek v. 161 N. Clark St. Ltd. P'ship, 692 N.E.2d 1177, 1182 (Ill. 1998). In applying § 2-201, the Supreme Court of Illinois has defined a discretionary act as one that is unique to a particular public office and a policy decision as one that "balance[s] competing interests" and then make[s] a judgment call as to what solution will best serve each of those interests." Harinek, 692 N.E.2d at 1181. See also Reed v. City of Chicago, 2002 WL 406983, at *2 (N.D. Ill. Mar. 14, 2002).
In this case, the court finds defendants entitled to immunity under § 2-201 against Doe's tort claims. First, defendants qualify for immunity under the Act because they occupy positions that require them to make policy determinations and exercise discretion for the public good. Based on allegations in Doe's complaint, the Village President, the Village, and the Board all have supervisory and policy-making authority over the operations of the Village's fire department as well as the Fire Chief. Second, defendants' complained-of conduct involved both acts of discretion and decisions of policy. Doe alleged that defendants should be held liable for his injuries due to their failure to take reasonable care to ensure his safety, in that defendants negligently and/or recklessly hired, retained, supervised, and trained the Fire Chief. Maintaining a fire department is an inherently governmental function that requires defendants to exercise discretion on almost every level of operation. See Taylor v. City of Chicago, 1997 WL 51445, at *4 (N.D. Ill. Feb. 3, 1997) (finding that "operation of a police department" and its attendant responsibilities, such as making "hiring and training decisions" are "inherently discretionary and, therefore, subject to" the Immunity Act). Defendants also engaged in policy-making when they established the Fire Cadet program. There is nothing in Doe's complaint to suggest that defendants were under legal mandate to establish the cadet program in the first instance, nor to regulate its operations in any particular manner. In addition, defendants had both the authority and the responsibility to balance any competing interests in the supervision of its municipal employees, including the Fire Chief.
Based on the above, Counts 6, 7, 9, 10, 12 and 13 are dismissed.
Invasion of privacy under state and federal constitutions: Counts 8, 11, 14
Next, Doe charges that the Village President (Count 8), the Village (Count 11), and the Board (Count 14), by their allegedly negligent supervision and wrongful retention of the Fire Chief, violated Doe's right to privacy as guaranteed by the Illinois and United States Constitutions. Though Doe fails to identify which provisions of the state and federal constitutions guarantee his "fundamental right" to privacy, he seems to allege that he has suffered a deprivation of liberty under the Fourteenth Amendment of the United States Constitution and Article I, § 12, of the Illinois Constitution. To the extent that Doe seeks a remedy for a violation of his rights by defendants under federal law, the court considers these charges duplicative of his claims for relief under § 1983 made in Counts 15 and 16 and therefore will not address them separately.
As to Doe's claim for relief under the Illinois Constitution for invasion of privacy, the court concludes that Doe cannot seek damages for his alleged constitutional injuries where, as here, he has access to adequate remedies under Illinois common law and federal law. Though the Supreme Court of Illinois seems not to have faced this issue squarely, the federal courts which have have held that the Illinois Constitution, in particular Article I, § 12, does not confer a private right of action on plaintiff's who otherwise have adequate remedies under state common law or federal law. See Tidwell v. Teneyuque, 2001 WL 321052, at *3 (N.D. Ill. Mar. 30, 2001); Richard v. Lukensmeyer, 1999 WL 261835, at *2 (N.D. Ill. Apr. 12, 1999). As Doe's complaint seeks recovery under several state tort theories as well as federal law, the court finds that he has adequate channels for righting any wrongs done to him and will not now create an implied right of action under the Illinois Constitution where one does not clearly exist. Counts 8, 11 and 14 are therefore dismissed.