failed to properly train, supervise, control, instruct and was otherwise careless. This alleged
conduct fails to demonstrate an “utter indifference to or conscious disregard” of plaintiff's
safety.” Plaintiff states in her complaint that Officer Griffin infringed upon the bodily integrity
of the Plaintiff without her consent and then assault[ed] and batter[ed] her. The Court is unclear
as to what Plaintiff is alleging when she claims Defendant Griffin infringed upon her bodily
integrity. Furthermore, Section 2-201 bars a suit against the City for battery. Moreover, the
question is whether the City, in formulating and carrying out the alleged policies that caused this
infringement upon Plaintiff's bodily integrity as well as the assault and battery, was exercising
discretion and formulating policy. The Supreme Court has held that the City’s failure to
supervise workers is a discretionary matter subject to §2-201 immunity. Jn re Chicago Flood
Litig., 176 Ill. Dec. 532, 680 N.E.2d. 265, 273 (1997). Viewing plaintiff's allegations in light
most favorable to plaintiff, the Court finds that these allegations are insufficient to state a claim
for willful and wanton misconduct against the City. Plaintiff may amend her complaint to allege
the nature of the willful and wanton conduct she is alleging and the City’s alleged role in
furtherance of such. Accordingly, Count III is dismissed without prejudice.
COUNT IV

In Count IV, plaintiff asserts that the City deprived her of her right to equal protection of
the laws and impeded the due course of justice in violation of the United States Constitution and
42. U.S.C. § 1983, apparently because the City employs the police officer who allegedly “struck”
the plaintiff. Count IV of plaintiffs complaint contains one paragraph which states “as a direct

result of the Defendant, City of Chicago, actions with regard toward Plaintiff, TALLEE BATES-

4


discipline and control. Defendant argues that it is entitled to immunity pursuant to two sections

of the Illinois Tort Immunity Act. The Illinois Tort Immunity act provides, in relevant part, that:
“A local public entity is not liable for an injury resulting from an act or omission of its employee
where the employee is not liable.” 745 ILCS 10/2-109 (West 1994), and that:

Except as otherwise provided by Statute, a public employee serving in a position

involving the determination of a policy or the exercise of discretion is not liable

for an injury resulting from his act or omission in determining policy when in the

exercise of such discretion even though abused.
745 ILCS 10/2-201 (West 1994).

The Illinois Tort Immunity Act provides that “a public employee serving ina position
involving the determination of policy or the exercise of discretion is not liable for an injury
resulting from his act or omission in determining policy when acting in the exercise of such
discretion even though based.” 745 ILCS 10/2-201. However, this state law grant of immunity
is limited; not every act or omission by a public employee is protected. Zimmerman v. Village of
Skokie, 183 Ill. 24 30, 44, 697 N. E. 2d 699, 713, 231 Ill. Dec. 914, 928 (1999). A public
employee is not liable for negligence “in the execution or enforcement of any law,” but he is
liable if his “act or omission constitutes willful and wanton conduct.” 745 ILCS 10/2-202.
“Willful an wanton conduct” is defined by the Tort Immunity Act as “a course of action which
shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1-

210.

According to the complaint the City was negligent when it carelessly and negligently


BEY, she was deprived of her right to equal protection of the laws and impeded the due course of
justice, in violation of the United States Constitution and 42 U.S.C. § 1983.” The City moves to
dismiss Count IV arguing that plaintiff does not assert that the constitutional harm she suffered
was caused by an official policy, custom or usage of the City. Instead plaintiff reiterates that she
sustained injuries as a result of a battery.

A municipality cannot be held liable for the actions of individual employees under § 1983
based on a theory of respondeat superior. Monell v. Department of Soc. Servs. Of the City of
New York, 436 U.S. 658,691, 98 S.Ct. 2018, 56 L.Ed.2d. 611 (1978). A municipality may,
however, be liable if the plaintiff can show that he or she suffered a constitutional deprivation
that was caused by an official policy, custom, or usage of the municipality. Id. at 690-91, 98
S.Ct.

The Supreme Court has expressly rejected a heightened pleading standard for §1983
claims against municipalities. Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 reaffirmed its understanding of
Leatherman, holding that such “boilerplate” allegations are sufficient. McCormick v. City of
Chicago, 230 F.3d. 319, 324-25 (7. Cir. 2000).

Plaintiff’s section 1983 claim does not mention a policy, but instead attributes her
constitutional injury to the alleged battery itself, Because a municipality cannot be held liable
under section 1983 solely under a theory of respondeat superior Count IV is dismissed without
prejudice. Plaintiff may amend Count IV to discuss the alleged municipal policies and/or the

nature of the constitutional violation, other than the battery, she was subjected to in this Count.

5


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

N ed Jud ing Ju
yr Magistrate Judge Ronald A. Guzman “than Asied See
CASE NUMBER 01 C2258 DATE 8/20/2001
CASE TALEE BATES-BAY vs. CITY OF CHICAGO, et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

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

(2) o Brief in support of motiondue

(3) Qo Answer brief to motion due__. Reply to answer brief due__.

(4) o Ruling/Hearingon__setfor___—_at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__setfor___—_at.

(6) QO Pretrial conference[held/continued to] [set for/re-set for] on setfor ss at_

(7) Oo Trial(set for/re-set for]on__at

(8) Oo [Bench/Jury trial] [Hearing] held/continued toa

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
DERCP4(m) OGeneralRule21 CI FRCP41(a)(1) CI FRCP41(a)(2).

qo) {Other docket entry] Defendant City’s motion to dismiss [4-1] is granted and Counts III and IV of

plaintiff's complaint are dismissed without prejudice. If plaintiff decides to amend her complaint the
amended complaint is to be filed within 15 business days of this order.

(1) mf

~ | Nonotices required, advised in open court.

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

No notices required. number of notices

NG 2 2 2001

date docketed "

Notices mailed by judge’s staff.

Notified counsel by telephone. A

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
cG deputy’s
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



CONCLUSION
For the reasons set forth above the City’s motion to dismiss is granted and Counts III and
IV of plaintiffs complaint are dismissed without prejudice. If plaintiff decides to amend her

complaint the amended complaint is to be filed within 15 business days of this order.

SO ORDERED ENTERED: 5/20 a”

Ronald A. Guzman
United States Judge



“

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED

EASTERN DIVISION AUG 2 2 2001

TALEE BATES-BAY )
)
)
Plaintiff, )

J No. 01 C 2258

Vv. ) Judge Ronald A. Guzman

)
)
CITY OF CHICAGO, a Municipal )
Corporation, and Officer EDWARD )
GRIFFIN, )
)
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Pending is Defendant City of Chicago’s (“City”) motion to dismiss Counts III and IV of
Plaintiff Talee Bates-Bay complaint pursuant to Fed. R. Civ. Proc. 12(b)(6). For the reasons set

forth below this motion is granted.

BACKGROUND FACTS
The City, as it must, takes the following well-pleaded facts as true for the purposes of this
motion. On March 12, 2000, at approximately 7:00 p.m. Officer Griffin was called to 2931
South Federal Street. (See Compl., 44). There he struck the plaintiff, causing her to sustain
serious and permanent bodily injuries. (See Compl., 4 5).

Plaintiff filed a four count complaint against the City and its employee, Police Officer

Griffin. Count J is a battery claim directed against Officer Griffin. In Count II, also directed


against Officer Griffin, plaintiff claims that she was “deprived of her right to equal protection of
the laws and impeded in the course of justice” in violation of the United States Constitution and
42 U.S.C. §1983. Count III, entitled “Negligence - City of Chicago” alleges that the City
carelessly and negligently filed to train, supervise, control and instruct its employees. And Count
IV, entitled “42 U.S.C. §1983 - City of Chicago,” repeats the allegations in Count II, substituting
the City for the individual police officer, and stating that , as a direct result of the City’s actions
with regard to plaintiff, “she was deprived of her right to equal protection of the laws and
impeded the due course of justice, ” in violation of the United States Constitution and 42
US.C.§1983.

While a district court should dismiss a complaint “only if it is clear that no relief could be
granted under any set of facts that could be proven consistent with the allegations, “ Hishon v.
King & Spalding,467 U.S. 69,73 (1984), “{e]ven the liberal notice pleading allowed by the
federal rules requires the complaint to include the operative facts upon which a plaintiff bases his
claim.” Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194,198 (7. Cir. 1985), Ifa
complaint fails to allege a necessary element required to obtain relief, dismissal is in order. See
R.LR. Services, v. Aetna Casualty and Sur. Co., 895 F.2d. 279,281 (7". Cir. 1989). Moreover, a
court is “not required to ignore any facts set forth in the complaint that undermine the plaintiff's
claim or assign any weight to unsupported conclusions of law.” City National Bank of Florida v.
Checkers, Simon & Rosner, 32 F.3d. 277,281 (7". Cir. 1994).

COUNT II
Count III sets forth a claim for negligence against the City for failure to train, instruct{],

2