1. District 4

The City Defendants first argue that, as a unit of the Chicago
Police Department, District 4 is not a suable entity. The Chicago
Police Department does not have a separate legal existence from the
City of Chicago and is not suable. Chan v. City of Chicago, 777 FP.
Supp. 1437, 1442 (N.b. T1ll. 1991). It follows that District 4 is
also not suable and therefore the Court dismisses it with
prejudice.

2. City of Chicago
a. § 1983 Claim

he City Defendants contend that James failed to satisfy the
minimum requirements of notice pleading for a municipal liability
case. A municipality cannot be held liable under § 1983 for the
actions of its employees on a respondeat superior theory. Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Accordingly, in
order to establish a § 1983 claim against the City of Chicaga,
James must establish that the alleged beating occurred pursuant lo
an official City of Chicago policy, custom, or practice. Id. at
694, In order to demonstrate that a municipal policy has violated
his civil rights under § 1983, James must allege that “(1) the City
had an express policy that, when enforced, causes a constitutional
deprivation; (2) the City 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



128246, at *7 (N.D. J11. Feb. 9, 2001). James does not allege that
Sheahan participated in, directed, or even knew about any of the
constitutional violations asserted in his complaint. The
allegations in his complaint are insufficient to support his claims
against Sheahan in his individual capacity. The Cook County
Defendants’ motion to dismiss the individual capacity claims
brought under § 1983 against the Cook County Sheriff is granted.
b. § 1983 Official Capacity Claim

James’ claim against the Cook County Sheriff in his official
capacity must also fail. Official-capacity suits are in effect
claims against the government entity for which the official works
and are treated as a suit against the entity. Kentucky v. Graham,
473 U.S. 159, 165-66 (1985). As discussed previously, a
municipality cannot be held liable under § 1983 unless the
violation occurred pursuant to an official policy, custom, or
practice. Monell, 436 U.S. at 694. As a result, to support an
official-capacity claim, James must allege facts demonstrating that
an official Cook County Sheriff’s office policy, custom, or
practice played a part in the violation of federal law. For the
samé reasons that the Court dismisses James’ § 1983 claims against
the City of Chicago, it dismisses James’ official-capacity § 1983
claims against the Cook County Sheriff. James has failed to
include even the most fleeting reference to any policy or custom

that caused the alleged constitutional violations.



Department District 4’s Motion to Dismiss” (“City Response”) and
his “Memorandum in Response to Motion to Dismiss” (“Response”) with
information on alleged policies that led to his injuries. In
determining whether to dismiss a complaint for failure to state a
claim under Rule 12(b) (6), however, “the district court may not
look to materials beyond the pleading itself.” Alioto v. Marshall
Field’s & Co., 77 F.3d 934, 936 (7th Cir. 1996). James cannot use
his brief in opposition to the motion to dismiss to amend that
pleading. Perkins v. Silverstein, 939 F.2d 463, 470 n.6 (7th Cir.
1991). The language in his complaint is simply insufficient to put
the City of Chicago on notice of his claim against it. As a
resulLl, the Court dismisses James’ § 1983 claim against the City of
Chicago.
b, State Claims

The City of Chicago Defendants also argue that if James is
asserting any state law claims against the City of Chicago, those
claims must be dismissed as time-barred under the applicable
statute of limitations. It is extremely difficult to determine
from James’ complaint whether he is indeed bringing any state law
claims against the City of Chicago. Regardless, under the
applicable statute of limitations, James had to file his state law
causes of action for injury against a local governmental entity

within a year of the date the cause of action accrued. 745 Th.

Comp. Stat. Ann. § 10/8-101 {West 2003) (amended by Public Act 93-11,



within the force of law; or (3) plaintiff's constitutional injury
was caused by a person with final policymaking authorily.”
McCormick, 230 F.3d at 324.

Defendants arguc that James has failed to assert sufficient
facts in his complaint to support a § 1983 claim. In addressing
this argument, the Court is mindful of the Supreme Court’s
prohibition on applying “a heightened pleading standard in civil
rights cases alleging § 1983 municipal liability.” Jd, at 323
(citing Leatherman v. Tarrant County Narcotics Intelligence 6
Coordination Unit, 507 U.S. 164, 164 (1993)). Indeed, courts must
be especially vigilant about not applying a heightened standard in
cases where, as here, the plaintiff is acting pro se. Id. at 325.

Even under the liberal pleading standards for pro sé
plaintiffs, James has failed to meet his burden. While there is
some confusion in the Seventh Circuit as to what exactly a
plaintiff must plead in a municipal liability suit to survive a
motion to dismiss, see id, at 324-25 (collecting cases), at the
very least, a plaintiff must “allege facts that would give the City
notice of his municipal liability claim.” Id. at 326. This James
fails Lo do. James’ complaint does not allege the existence of any
express policy or widespread practice employed by the City of
Chicago that led to his injuries. Indeed, James does not even
allege any wrongdoing by the City of Chicago. James fills both his

“Respone [sic] to Defendants City of Chicago and Chicago Police



sued. McLaughlin v. Cook County Dep’t of Corr., 993 F.Supp. 661,
664 (N.D. Ill. 1998) (Department of Corrections); Payne v. Cook
County Hosp., 719 F. Supp. 730, 733~34 (N.D. 11]. 1989) (Cook County
Hospital). As a result, the Court dismisses the Cook County poc
and the Cook County Hospital with prejudice.
2. The Cook County Sheriff
a. § 1983 Individual Capacity Claim

In his complaint, James names the “Cook County Sheriff” as a

defendant. As the Cook County Defendants note, it is unclear

whether James intended to sue the Cook County Sheriff, Michael F.

Sheahan, in his individual or official capacities or both.
Defendants contend that because James names the Cook County
Sheriff's office in his suit, there exists a presumption that
Sheahan is being sued only in his official capacity. They further
contend that in order for James to state a cause of action against
Sheahan in his individual capacity under § 1983, James must allege
that Sheahan caused or participated in the alleged constitutional
deprivation.

Even if the Court construes James’ complaint as asserting a
cause of action against Sheahan in his individual capacity, James’
claims must be dismissed. In order to hold Sheahan individually
liable, James must how that Sheahan either directed the alleged
constitutional violations or that they occurred with his knowledge

and consent. Hernandez v. City of Chicago, No. 99 C 6441, 2001 WL



Mangty Order Fon (eee?)

United States District Court, Northern District of Mlinois

Name of Assigned Judge
ar Magistrate Judge

Harry D. Leinenweber

Sitelng Judge if Other
than Assigned Judge

CASE NUMBER

02 C7703

DATE

7/15/2003

CASE Cecil James vs. City of Chicago, ct al
TITLE
a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 4rd party plaintill, ane (b) state brigily the nature
MOTION: of the motion being presented. |

DOCKET ENTRY:

(ap) oO Filed motion of [ use listing in “Motion” box above.]

(2) a] Brief in support of motion due

(3) Oo Answer brief to motion duc___ Reply to answer brief due

(4) o Ruling/tlearing on set for al

(5) ao Status hearing[held/continued to] [set for/re-set for] on setfor at

(6) oO Pretrial conference[hetd/continued to] [set for/re-set for] on setfor at

(ea) a ‘Triailset for/re-set for] on at

(8) Oo [BenchJury trial] [Hearing] held/continued to __ at

(9) a This case is dismissed [withAvithout] prejudice and without costs|by/agreement/pursuant to]
OFRCP4(n) OlLocal Rule dt.) OPRCPAI@)O) CT FRCPA1(a)(2).

(do) «of [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: The City Defendants*

and the Cook County Defendants’ motions to dismiss James’ Section 1983 are GRANTED, James’ claims
against District 4. Cook County DOC, and Cook County Mospital and any remaining state claims are
DISMISSED WITH PREJUDICE. James’ Section 1985 claim is also DISMISSED sua sponte. Mr. James
given fourteen (14) days from receipt of this Memorandum Opinion and Order in which lo object to the
Court’s dismissal of the Section 1985 claim.

(ll)

[Por further detail see order attached to the original minute order.]

No notices quired. advised in open court Document

Number

No notices requined

Notices mailed by judge's stall!

Nutitied caunsel by telephone.

SY | Bocketing tw mail notices

Mail AQ 430 form

reetainn eyuy fins

Copy to judgefmagistrate ju

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Crates inne
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sailing, dayty wins



that is, the making and enforcing of a contract. Morris v. Office
Max, Ine., 89 F.3d 411, 413 (7th Cir. 1996). There is absolutely
no hint in James’ complaint that he is bringing a § 1981 claim. He
dees not mention his race or any contract that could serve as the
basis for a § 1981 claim. As mentioned previously, James cannot
amend his pleading through his briefs in opposition to the motion
to dismiss. Perkins, 939 F.2d at 470 n.6. The Court finds that
James has tailed to assert a § 1981 claim in his complaint.

James does, however, suggest that he is asserting a § 1985(3)
claim in his complaint. In paragraph 25, James alleges the
following: “the defendant’s arranged and intend to cover up a
excessive force, false arrest false imprisonment, and assault and
Battery, Legal Malpractice Medical malpractice by the defendant’s.”
Like § 1981 claim, § 1985(3) claims require some allegation of
racial or class-based discrimination. Hernandez, 2001 WL 128246,
at *9, Nowhere in James’ complaint does he make any allegations
that the defendants’ actions were at all motivated by his race or
by any class-based discrimination.

The Court may sua sponte dismiss James’ § 1985 claim for
failure to state a claim under Rule 12(b) (6). Sampson v. Boharic,
12 F.3d 1101, 1993 WI, 484063, at *1 (7th Cir. Nov. 23, 1993). The
Court may only take such action if it appears beyond doubt that
James is unable to prove any set of facts that would entitle him to

relief. Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992).



3. Rule 10(b) Compliance

Defendants’ assertion that James has failed to comply with
Rule 10(b) is well-taken by the Court. Violation of Rule 10(b),
however, does not provide the basis for dismissal of a complaint.
Bledsoe v. City of Chicago, No. 96 C 2552, 1996 WL 535344, *4 (N.b.
Til. Sept. 19, 1996). Moreover, given that the Court is dismissing
James’ remaining claims, this issue is moot.

C. Additional Claims

In the various documents that James has filed in response to
the motions to dismiss, he appears to argue that he is asserting
claims under 42 U.S.C. §§ 1981, 1985(3). Neither the City
Defendants nor the Cook County Defendants moved to dismiss Lhese
claims. As mentioned previously, however, it is difficult to
ascertain precisely what claims James is bringing from his
complaint, Indeed, Defendants had to infer that he was bringing a
claim under § 1983.

Section 1981 prohibits discrimination in the “making and
enforcement of private contracts.” Majeske v. Fraternal Order of
Police, Local Ledge No. 7, 94 F.3d 307, 312 (7th Cir. 1996); see
also 42 U.S.C. § 1981. In order to assert a claim under § 1981, 4
plaintiff must prove that (1) he or she is a member of a racial
minority; (2) the defendant intended to discriminate against the
plaintiff on the basis of race; and (3) the discrimination

concerned one or more of the activities enumerated in the statute,

- 10 -



June 4, 2003). The alleged assault by the officers occurred on
August 16, 2001, therefore, any state law causes of action against
the City of Chicago that arise out of that assault had to be filed
by August. 16, 2002. James does not argue in either his Response or
in his City Response that his cause of action against the City of
Chicago accrued at a later date. Because James did not file his
complaint until October 25, 2002, in the event that James is
bringing any claims under state law, they are time-barred by
Illinois statute and must be dismissed with prejudice.
B. The Cook County Defendants’ Motion to Dismiss

The Cook County Nefendants also move the Court to dismiss
James’ complaint pursuant to Rule 12(b) (6). They argue that 1)
neither Cook County DOC nor Cook County Hospital are suable
entilies, 2) James fails to implicate the Cook County Sheriff in
either his individual or official capacity, and 3) James has failed
to comply with Federal Rule of Civil Procedure 10(b) (“Rule 10(b)”).

1. Cook County DOC and Cook County Hospital

Like the City Defendants, the Cook County Defendants contend
that the Cook County DOC and Cook County Hospital are not suable as
neither has a separate legal existence from the County of Cook.
James argues that these entities should remain as parties to this
suit because they conspired to deprive him of his Eighth Amendment
rights in violation of § 1985(3). The mere fact that he is making

this allegation does not change the fact that neither entity may be



medical malpractice. In the briefs filed in this case, James also
states that he asserts claims under 42 U.S.C. §§ 1981, 1985. ‘Lhe
Court has dismissed the claims against the attorneys, against
Jackson Park Hospital, and against the University of Jllinois
Medical Center.
II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) tests whether the
plaintiff has properly stated a claim upon which relief could be
granted, not whether the plaintiff will ultimately prevail on the
merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In ruling on
a motion to dismiss, a court must construe all well-pleaded
allegations of the complaint as true, and draw all reasonable

Id. A motion to dismiss

inferences in favor of the plainti
will not be granted unless it “appears beyond doubt that the
plaintiff can prove no set of facts in support of his claims which
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957).
IIL. DISCUSSION
A. The City Defendants’ Motion to Dismiss

The City Defendants argue that James’ complaint should be
dismissed because: 1) District 4 is not a suable entity; 2) James
failed to allege any facts in his complaint demonstrating that his
injuries were caused by City of Chicago policies or customs; and 3)

James’ state claims are time-barred.


handcuffed him, and then beat him in the knee with their night
sticks, threw him on the ground, and stepped on him. The officers

eventually searched James and found no weapon. James contends that

the o cers then took him to Jackson Park Hospital, where he
stayed for two weeks before being removed to jail due to
oulstanding traffic tickets. During the thirty-five days he spent
in jail, James believes he suffered a stroke, but was denied
medical treatment for either the stroke or his injuries. Finally,
James was taken to Cook County Hospital and treated for slurred
speech anda stroke. Upon release from jail, James appears to have
gone to the University of Illinois Hospital for treatment.

On October 25, 2002, James filed a complaint in this Court
against the City of Chicago, the Chicago Police Department, the
Cook County Sheriff, Jackson Park Hospital, the Cook County DOC,
the University of Illinois Medical Center, Cook County Hospital,
and several attorneys who allegedly refused to take his case. It
is difficult to determine exactly what claims James is asserting in
his complaint, however, James is a pro se plaintiff and therefore
his complaint must be “liberally construed.” McCormick v. City of
Chicago, 230 F.3d 319, 325 (7th Cir. 2000). It appears that James
seeks relief under 42 U.S.C. § 1983, alleging claims for excessive
force, assault, battery, false arrest, and false imprisonment in
violation of his Fourth, Fifth, Sixth, Eighth, Ninth, and

Fourteenth Amendment rights, as well as claims for legal and


FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT oF rLLInors JUL 1 5 2003

EASTERN DIVISION
JUDGE HARRY D. |

US. DISTR os LENENWEBER

CECIL JAMES, ‘OURT JUDGE

Plaintiff,
Case No. 02 C 7703
v.
Hon. Harry D. Leinenweber
CITY OF CHICAGO, et al.,

Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are two motions to dismiss Cecil James’
(hereinafter “James”) pro se complaint. The first is filed by the

City of Chicago and the Chicago Police Department District 4

(“District 4” and, collectively with the City of Chicago, “the City
Defendants”). The second is Filed by the Cook County Sheriff, Cook
County Department of Corrections (the “Cook County DOC”), and Cook
County Hospital (collectively, “the Cook County Defendants”), Koth
the City Defendants and the Cook County Defendants move the Court
to dismiss James’ complaint pursuant to Federal Rule of Civil
Procedure 12(b) (6) (“Rule 12(b) (6)”). For the following reasons,
the Court grants both motions.
I. BACKGROUND

The following facts are taken from James’ complaint. on

August 16, 2001, James was stopped by unknown officers from the

Chicago Police Department who appeared to believe that he was

carrying a gun. James ran from the officers but they caught and



After a thorough and careful review of James’ complaint, the Court
finds that James has failed to allege sufficient facts to state a
claim under § 1985. The Court, however, must give James an
opportunity to object to its intent to dismiss this claim. SLewart
Title Guar. Co. v. Cadle Co., 74 F.3d 835, 836 (7th Cir. 1996) (per
curiam) . Accordingly, the Court gives James fourteen (14) days
from receipt of this Memorandum Opinion and Order in which to
object to the Court’s sua sponte dismissal of his § 1985 claim.
CONCLUSION

Por the foregoing reasons, the City Defendants’ and the Cook
County Defendants’ motions to dismiss James’ § 1983 claims are
GRANTED. James’ claims against District 4, Cook County DOC, and
Cook County Hospital and any remaining state claims are DISMISSED
WITH PREJUDICE. James’ § 1985 claim is a 6 orjurssen Sua sponte.

Mr. James has fourteen (14) days from/receipt/ of this Memorandum

Opinion and Order in which to objec ourt’s dismissal of
the § 1985 claim.

IT IS SO ORDERED.

Harry l/ Delnenweber, Judge
United States District Court

Date: -)