1 The decision in this case was withheld pending lengthy

settlement proceedings in the Illinois State Courts.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2884

ESTATE OF THETIS M. SIMS, by and through its

personal representative, Melissa K. Sims,

WILLIAM C. SIMS, surviving spouse and next of kin,

and MELISSA K. SIMS, individually,

Plaintiffs-Appellants,

v.

COUNTY OF BUREAU, as a necessary party in interest,

GREG JOHNSON, JOHN E. THOMPSON, in his official

capacity as Sheriff of the County of Bureau and

BUREAU COUNTY SHERIFF’S DEPARTMENT,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 00 C 1065—Joe Billy McDade, Judge.

____________

ARGUED FEBRUARY 26, 2003—DECIDED OCTOBER 19, 20071

____________

Before EASTERBROOK, Chief Judge, and FLAUM and

KANNE, Circuit Judges.

KANNE, Circuit Judge. In 1999 Thetis M. Sims suffered

a fatal heart attack in her home in Tiskilwa, Illinois. The
2 No. 01-2884

2 In accordance with Fed. R. App. P. 43(c)(2), we grant the

plaintiffs’ unopposed motion to substitute the current Sheriff

of Bureau County, John E. Thompson, for Johnson in his official capacity.

only person present at the time was Bureau County

Sheriff Greg Johnson, whose alleged campaign fraud was

the subject of a story Ms. Sims was investigating for the

local newspaper. Her estate, her husband, and her daughter brought a federal civil rights suit against Johnson in

his individual and official capacities,2

 Bureau County, and

the Bureau County Sheriff’s Department, alleging that

Johnson’s actions led to Sims’s death. The district court

granted the defendants’ motions to dismiss for failure to

state a claim upon which relief can be granted pursuant

to Fed. R. Civ. P. 12(b)(6), and the plaintiffs appeal.

Following oral argument in the appeal, the plaintiffs

informed us that they had settled their claims against

Johnson, but that the remaining defendants were challenging the settlement agreement in Illinois state court.

We suspended our proceedings until the Illinois courts

could resolve the dispute. In accordance with the state

court decisions, we dismiss Johnson in his individual

capacity. The plaintiffs have failed to establish their

claims against the remaining defendants. Accordingly,

we affirm the dismissal of the complaint.

I. BACKGROUND

Because the district court dismissed the complaint

pursuant to Rule 12(b)(6), we assume all well-pleaded

allegations in the complaint are true and draw all reasonable inferences in the plaintiffs’ favor. Christensen v.

County of Boone, Illinois, 483 F.3d 454, 457 (7th Cir. 2007)

(per curiam); Holman v. Indiana, 211 F.3d 399, 402 (7th

Cir. 2000). See also Bell Atlantic Corp. v. Twombly, 127
No. 01-2884 3

S. Ct. 1955, 1965 (2007). Prior to her death, Sims, a parttime newspaper reporter for the Kewanee Star Courier,

was conducting an investigation into allegations that

Sheriff Johnson engaged in campaign fraud in his election campaign and misused county funds. She had expressed concern to others that Johnson might retaliate

against her for writing the story. On the day of her death,

in an effort to intimidate Sims from writing the newspaper

article about Johnson’s misconduct, Johnson deposited

for bulk mailing to the residents of the Simses’ hometown

a letter falsely accusing Sims’s husband, William, of past

and current felonious criminal conduct. Johnson then

telephoned Sims, asked to speak with her, and drove to

her home in Tiskilwa. Upon arrival, he showed the defamatory letter to Sims and questioned her regarding the

accusations of criminal conduct by her husband. According

to the allegations of the complaint, Johnson knew of

Sims’s heart condition, and knew or had reason to believe

that reading a letter containing such extreme, outrageous

accusations about her husband would cause her great

emotional distress and would increase the likelihood that

she would suffer a fatal heart attack.

At approximately 12:30 p.m., Sims did suffer a fatal

heart attack. Johnson radioed for an ambulance at 12:47

p.m., but by the time the paramedics arrived at 12:54 p.m.,

Sims was not breathing and did not have a pulse. One of

the paramedics described her as “cold” when he arrived.

The plaintiffs’ expert in emergency medicine averred that

Sims died of cardiac arrhythmia provoked by extreme

anger or fear and that she could have survived if she had

been given CPR immediately. Johnson told the paramedics that he did not complete CPR because his rubber

gloves kept breaking. Before calling the ambulance,

Johnson used Sims’s telephone to call the Princeton Post

Office and ask a postal worker about the criminal penalties for sending defamatory letters and whether the bulk-
4 No. 01-2884

rate mailing of the defamatory letter could be traced.

Sims’s daughter found the telephone off the hook and out

of her mother’s reach. Following her death, Johnson

dropped his own investigation regarding the defamatory

letter. He also failed to investigate Sims’s death and

refused to cooperate with the police officers seeking to

investigate her death.

Both Johnson, in his individual capacity, and the County

defendants—Bureau County, the Bureau County Sheriff’s

Department and the Sheriff in his official capacity—filed

motions to dismiss for failure to state a claim upon which

relief can be granted. Magistrate Judge Evans recommended, in part, that the district court dismiss the

following parties and claims: (1) the County of Bureau as

a real party in interest; (2) the First, Fourth, Fifth, Eighth,

and Ninth Amendment claims in Counts IX and X; (3) the

prayer for punitive damages in Counts IX, X, and XI, and

(4) Counts XIV, XV, XVI, and XVII against the Sheriff

in his official capacity. Neither side filed objections as

to these recommendations; therefore, the district court

adopted these portions of the Report and Recommendation.

The district court, however, rejected the portions of the

Report and Recommendation that the Bureau County

Sheriff’s Department be retained as a party, that the

substantive due process violation claims in Counts IX and

X be allowed, that the conspiracy claims in Count XI be

allowed, and that the supplemental state law claims

be allowed. The district court accordingly granted the

defendants’ motions to dismiss pursuant to Fed. R. Civ. P.

12(b)(6) in their entirety, and dismissed the federal

claims with prejudice and the state claims without prejudice.

II. DISCUSSION

The plaintiffs appealed from the disposition of the

motion to dismiss the individual capacity claims against
No. 01-2884 5

Johnson and the motion to dismiss the claims against

Bureau County, the Bureau County Sheriff’s Department

and the Sheriff in his official capacity. However, after oral

argument was heard in this appeal, the plaintiffs entered

into a settlement agreement with Johnson. Although the

plaintiffs and Johnson settled only the claims against

Johnson, the plaintiffs further agreed to dismiss their

appeal and to limit their right to collect the settlement

solely from Bureau County and its insurers. When they

notified this court of the settlement agreement, the

plaintiffs informed the court that Bureau County understandably was already challenging the settlement agreement in the state court case and asked the court to stay

its proceedings pending resolution of the enforceability

of the action in state court, which we did. The Illinois

Appellate Court held that the settlement agreement was

enforceable with respect to Johnson in his individual

capacity, but not enforceable with respect to the Sheriff’s

Office or the County. Sims v. Johnson, No. 3-05-0416 (Ill.

App. 3 Dist. July 27, 2006). State law governs a suit to

enforce a settlement of a federal suit. Dillard v. Starcon

Int’l, Inc., 483 F.3d 502, 506-07 (7th Cir. 2007); Lynch, Inc.

v. SamataMason Inc., 279 F.3d 487, 490 (7th Cir. 2002). At

the time he entered into the settlement agreement,

Johnson had resigned as Sheriff of Bureau County and

was not empowered to act on behalf of the Sheriff’s Office.

Cf. Carver v. Sheriff of LaSalle County, 787 N.E.2d 127

(Ill. 2003) (holding that an acting sheriff is authorized

under the Illinois Tort Immunity Act to enter into settlement agreements that bind the county for the acts of the

sheriff in his official capacity). Accordingly, we grant the

plaintiffs’ motion to dismiss Johnson only in his individual

capacity. We reject Johnson’s argument that the current Sheriff in his official capacity also be dismissed

based on the settlement agreement.
6 No. 01-2884

We review de novo whether the complaint states a claim

upon which relief can be granted. Christensen, 483 F.3d

at 458. Federal Rule of Civil Procedure 8(a)(2) requires

only “a short and plain statement of the claim showing

that the pleader is entitled to relief.” The statement need

only “ ‘give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.’ ” Bell Atlantic, 127

S. Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). See also Erickson v. Pardus, 127 S. Ct. 2197, 2200

(2007). In order to state a claim pursuant 42 U.S.C. § 1983,

the plaintiffs must allege that a government official, acting

under color of state law, deprived them of a right secured

by the Constitution or laws of the United States.

Christensen, 483 F.3d at 459. In a civil rights case alleging

municipal liability, a federal court may not apply a

heightened pleading standard more stringent than the

usual Rule 8(a) pleading requirements. Leatherman v.

Tarrant County Narcotics Intelligence and Coordination

Unit, 507 U.S. 163, 165 (1993).

Now that the individual capacity claims against Johnson

have been settled, only three defendants remain—John E.

Thompson, in his official capacity as Sheriff, the Sheriff’s

Department, and Bureau County. The liability of the

Sheriff’s Department and of the County is derivative of

Thompson’s official-capacity liability, and the officialcapacity liability is subject to holding in Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978), that “a

local government may not be sued under § 1983 for an

injury inflicted solely by its employees or agents.”

In order to state a § 1983 claim against a municipality,

the complaint must allege that an official policy or

custom not only caused the constitutional violation, but

was “the moving force” behind it. City of Canton, Ohio v.

Harris, 489 U.S. 378, 389 (1989). See also Arlotta v.

Bradley Center, 349 F.3d 517, 521-22 (7th Cir. 2003); Gable
No. 01-2884 7

v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002).

Unless there is an unconstitutional policy, there cannot

be official-capacity liability; only individual-capacity

liability is possible. The “official policy” requirement for

liability under § 1983 is to “distinguish acts of the municipality from acts of employees of the municipality, and

thereby make clear that municipal liability is limited to

action for which the municipality is actually responsible.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).

“Misbehaving employees are responsible for their own

conduct[;] ‘units of local government are responsible only

for their policies rather than misconduct by their workers.’ ” Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir.

2007) (quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th

Cir. 2007)). A plaintiff may demonstrate an official policy

through: (1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice that is so permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the

constitutional injury was caused by a person with final

policymaking authority. Lewis, 496 F.3d at 656.

The first question, therefore, is whether the complaint

alleges a direct causal link between a policy or custom of

the Sheriff’s Department and the alleged constitutional

violations. City of Canton, 489 U.S. at 385. The complaint

alleges that the Sheriff’s Department had no policy or

custom at the time of Sims’s death for handling emergency

medical situations and no protocol or policy manual

regarding CPR certification or training. The remaining

allegations, however, make clear that the events about

which the plaintiffs complain are well beyond a failure to

rescue Sims or provide emergency medical services. The

complaint contends that Johnson murdered Sims by

inducing a heart attack. The plaintiffs do not contend that

the Sheriff’s Department had a policy of frightening
8 No. 01-2884

reporters to death, or even of failing to rescue journalists

who write critical articles. The plaintiffs have not alleged

that such an express policy exists, nor is it possible to infer

there is such a policy at work. In cases asserting an

implicit policy or a gap in express policy, “what is needed

is evidence that there is a true municipal policy at issue,

not a random event.” Phelan v. Cook County, 463 F.3d 773,

790 (7th Cir. 2006) (quoting Calhoun v. Ramsey, 408

F.3d 375, 380 (7th Cir. 2005)). Nor have the plaintiffs

asserted that Johnson held final policymaking authority

with respect such policies. Killinger v. Johnson, 389 F.3d

765, 771-72 (7th Cir. 2004). The official in question must

be the final policymaker in the particular area or on the

particular issue raised in the case. Kujawski v. Bd. of

Comm’rs of Bartholomew, Ind., 183 F.3d 734, 738 (7th Cir.

1999) (quoting McMillian v. Monroe County, 520 U.S. 781,

785 (1997)).

Although the plaintiffs baldly assert on appeal that

Johnson’s actions were “the outrageously reckless, probably criminal, activity of a state actor under of color of his

state office,” the allegations of the complaint do not show

that Johnson’s conduct was related to the performance

of his official duties. Not every action taken by a state

official is considered to have occurred under color of state

law. Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001)

(quoting Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir.

1989)). An action is taken “under color of state law” if it

involves a “[m]isuse of power, possessed by virtue of state

law and made possible only because the wrongdoer is

clothed with the authority of state law.” National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988)

(quoting United States v. Classic, 313 U.S. 299, 326

(1941)). Whether a particular action was under color of

state law depends “largely on the nature of the specific

acts the police officer performed, rather than on merely

whether he was actively assigned at the moment to the
No. 01-2884 9

performance of police duties.” Pickrel v. City of Springfield,

Illinois, 45 F.3d 1115, 1118 (7th Cir. 1995). See also

Martinez v. Colon, 54 F.3d 980, 986-87 (1st Cir. 1995). The

allegations of the complaint, even viewed in the light

most favorable to the plaintiffs, show that Johnson was

off on a frolic, trying to protect a personal interest.

In an attempt to show his actions were part of an official

investigation, the plaintiffs argue that Johnson went to

Sims’s house to investigate the defamatory letter regarding her husband, but the complaint recognizes that

Johnson knew the statements in the letter were false and

that he immediately dropped the “apparent investigation” into the letter after Sims’s death. Similarly, the

allegations do not support the plaintiffs’ argument that

Johnson was able to gain entry into the Sims’s house only

because of his position as Sheriff. See West v. Atkins, 487

U.S. 42, 49 (1988). According to the complaint, Sims

was investigating Johnson’s campaign misconduct, she

asked to speak with him numerous times, he left a message on her answering machine, and she returned the

call to arrange his visit to the house. These are not actions

of a state actor performed under color of state law but

are the private actions of a person who happened to be a

county officer. His actions were in furtherance of his

personal interests, even if he performed them while on

duty. Pickrel, 45 F.3d at 1118.

In light of our conclusion that the complaint failed to

state an official capacity claim, we only briefly address the

plaintiffs’ remaining arguments. Plaintiffs argue that

neither the magistrate judge nor the district court addressed their claim that Johnson’s actions deprived Sims

of her First Amendment right to freedom of the press. This

argument overlooks the magistrate judge’s finding that

the plaintiffs failed to make any factual or other required allegations in connection with their First, Fourth,

Fifth, Eighth, and Ninth Amendment claims and the
10 No. 01-2884

judge’s corresponding conclusion that these claims should

be stricken pursuant to Fed. R. Civ. P. 8(a)(2). Indeed, the

complaint does nothing more than list the rights guaranteed under the First, Fourth, Fifth, Eighth, Ninth, and

Fourteenth Amendments and baldly assert that the

defendants violated these rights. Plaintiffs failed to

object to the magistrate judge’s recommendation that

these claims be stricken, and accordingly waived their

right to challenge the dismissal of the First Amendment

claim on appeal. See 28 U.S.C. § 636(b)(1); United States

v. Sachsenmaier, 491 F.3d 680, 683 (7th Cir. 2007); Egert

v. Connecticut General Life Ins. Co., 900 F.2d 1032, 1039

(7th Cir. 1990).

Plaintiffs also challenge the district court’s dismissal of

their claim under 42 U.S.C. § 1985 for denial of their right

of access to the courts. They alleged that Johnson and

“possibly other persons employed by the Bureau County

Sheriff’s Department” denied them a fair opportunity

to vindicate Sims’s death through judicial redress by

intentionally covering up the circumstances of her death

and refusing to cooperate with police officers seeking to

investigate the death. The plaintiffs’ complaint fails to

state a claim of conspiracy to deprive their right of

access to the courts because there are no allegations that

Johnson conspired with another person to conceal information or otherwise hamper the investigation into Sims’s

death. See 42 U.S.C. § 1985(2); Wright v. Illinois Dept. of

Children & Family Services, 40 F.3d 1492, 1507 (7th Cir.

1994). Even under notice pleading, a complaint must

indicate the parties, the general purpose, and approximate

date of the agreement to form a conspiracy so that the

defendant has notice of the charges against him. Walker v.

Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). The

plaintiffs’ reliance on Bell v. City of Milwaukee, 746 F.2d

1205, 1261 (7th Cir. 1984), overruled on other grounds by

Russ v. Watts, 414 F.3d 783 (7th Cir. 2005); and Ryland v.
No. 01-2884 11

Shapiro, 708 F.2d 967, 972 (5th Cir. 1983), is misplaced

and ignores an important factor in Bell and Ryland—that

several defendants conspired together to cover up the

deaths. Here, the allegations suggest that Johnson acted

alone, and the district court properly concluded that

such allegations are insufficient to state a conspiracy

claim.

We note that after the district court dismissed Bureau

County and entered its judgment, we affirmatively held

that “a county in Illinois is a necessary party in any suit

seeking damages from an independently elected county

officer (sheriff, assessor, clerk of court, and so on) in an

official capacity.” Carver v. Sheriff of LaSalle County,

Illinois, 324 F.3d 947, 948 (7th Cir. 2003). In light of our

decision in Carver, we agree with the plaintiffs that

Bureau County would have been a necessary party to the

case if the complaint had stated a claim against the

Sheriff in his official capacity.

Finally, we must resolve several other matters that

have arisen in the course of the appeal. The County

defendants seek sanctions against plaintiffs’ counsel for

revealing discussions that were had in the course of

participating in proceedings with this court’s Settlement

Conference Office. Of course, settlement negotiations are

confidential for most purposes, In re Young, 253 F.3d 926

(7th Cir. 2001), and counsel should never reveal such

conversations in an attempt to gain a strategic advantage.

But it is not clear in this case that counsel engaged in

sanctionable conduct with regard to the settlement

proceedings, and we deny the appellees’ motion for sanctions.

We also deny the motion to strike certain factual statements in the plaintiffs’ brief. In reviewing the propriety

of the dismissal of the plaintiffs’ complaint, we have

confined our review to the allegations, liberally construed,

as set forth in the plaintiffs’ complaint.
12 No. 01-2884

III. CONCLUSION

Because the complaint does not allege a direct, causal

link between Sims’s death and a policy or custom of the

Sheriff and the Sheriff’s Department, only individual

capacity liability would be possible. The plaintiffs’ settlement with appellee Greg Johnson in his individual capacity therefore resolves everything, and we affirm the

dismissal of the complaint.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-19-07