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

E STATE OF T HETIS M. S IMS , by and through its personal representative, Melissa K. Sims, W ILLIAM C. S IMS , surviving spouse and next of kin, and M ELISSAK. S IMS , individually,
Plaintiffs-Appellants

, v.

C OUNTY OFB UREAU , as a necessary party in interest, G REG J OHNSON , J OHNE. T HOMPSON , in his official capacity as Sheriff of the County of Bureau and B UREAUC OUNTYS HERIFF’S D EPARTMENT , Defendants-Appellees.

____________ Appeal from the United States District Court for the Central District of Illinois. No. 00 C 1065— Joe Billy McDade

, Judge.

____________ A RGUED F EBRUARY 26, 2003—D ECIDED O CTOBER 19, 2007 1

____________

Before E ASTERBROOK, Chief Judge , and F LAUM and K

ANNE , Circuit Judges.

K

ANNE , Circuit Judge. In 1999 Thetis M. Sims suffered a fatal heart attack in her ho me in Tiskilwa, Illinois. The2 No. 01-2884

2 In accordance with Fed. R. App. P. 43(c)(2), we grant the plaintiffs’ unopposed motion to substitute the current Sheriffof 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. Si ms was investigating for thelocal 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’ motion s 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 remain ing defendants were challenging the settlement agreem ent in Illinois state court. We suspended our proceedings until the Illinois courts could resolve the dispute. In accordance with the state court decisions, we dismis s Johnson in his individual capacity. The plaintiffs have failed to establish their claims against the remaining defendants. Accordingly, we affirm the dismi ssal 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 , 127No. 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 investig ation into allegations thatSheriff 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 Si ms from writing the newspaper article about Johnson’s misconduct, Johnson deposited for bulk mailing to the reside nts 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 sp eak with her, and drove to her home in Tiskilwa. Upon a rrival, 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 containi ng such extrem e, 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 para medics arrived at 12:54 p.m., Sims was not breathing and di d 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 co uld have survived if she hadbeen given CPR immediately. Johnson told the paramedics that he did not comp lete CPR because his rubber gloves kept breaking. Be fore calling the ambulance, Johnson used Sims’s telephone to call the Princeton PostOffice 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 defamato ry letter could be traced. Sims’s daughter found the te lephone 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 individu al capacity, and the County defendants—Bureau County, the Bureau County Sheriff’s Department and the Sheriff inhis official capacity—filed motions to dismiss for failure to state a claim upon which relief can be granted. Magi strate 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) th e First, Fourth, Fifth, Eighth, and Ninth Amendment claims inCounts IX and X; (3) the prayer for punitive damages inCounts 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; th erefore, 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 th e state claims without prejudice.

II. DISCUSSION

The plaintiffs appealed from the disposition of the motion to dismiss the individu al capacity claims againstNo. 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 officialcapacity. However, after oral argument was heard in this a ppeal, 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 cour t 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 wi th 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 Sh eriff of Bureau County and was not empowered to act on be half 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 authorizedunder the Illinois Tort Immunity Act to enter into settlement agreements that bind th e county for the acts of the sheriff in his official capaci ty). Accordingly, we grant the plaintiffs’ motion to dismiss Johnson only in his individualcapacity. 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 stat ement 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 la ws 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 thr ee defendants remain—John E. Thompson, in his official capaci ty 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 byits 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); GableNo. 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 municipalit y 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 thanmisconduct 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 policythrough: (1) an express policy that causes a constitutional deprivation when enfo rced; (2) a widespread practice that is so permanent an d well-settled that it constitutes a custom or practice; or(3) an allegation that the constitutional injury was caus ed 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 an d 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 frightening8 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 onthe nature of the specific acts the police officer perfor med, rather than on merely whether he was actively assi gned at the moment to theNo. 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 acti ons were part of an official investigation, the plaintiffs argue that Johnson went toSims’s house to investigate the defamatory letter regarding her husband, but the co mplaint recognizes that Johnson knew the statements in the letter were false andthat he immediately dropped the “apparent investigation” into the letter after Si ms’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, sheasked to speak with him numerous times, he left a message on her answering mach ine, and she returned the call to arrange his visit to th e 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 clai m, we only briefly address the plaintiffs’ remaining arguments. Plaintiffs argue thatneither the magistrate judge nor the district court addressed their claim that Johns on’s actions deprived Sims of her First Amendment right to freedom of the press. This argument overlooks the magi strate judge’s finding thatthe plaintiffs failed to make any factual or other required allegations in connection with their First, Fourth, Fifth, Eighth, and Ninth Amendment claims and the10 No. 01-2884

judge’s corresponding conclusi on that these claims should be stricken pursuant to Fed. R. Civ. P. 8(a)(2). Indeed, thecomplaint 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, an d accordingly waived their right to challenge the dismi ssal 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. Theyalleged 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 wi th 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 thatJohnson conspired with another person to conceal information or otherwise hamper th e 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 ge neral 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 Belland 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 insuffi cient 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, cler k 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 plai ntiffs’ complaint, we have confined our review to the a llegations, 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 De partment, only individualcapacity liability would be possible. The plaintiffs’ settlement with appellee Greg Johns on in his individual capacity therefore resolves ever ything, 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