Bordanaro v. McLeod, 871 F.2d 1151, 1163 (1st Cir. 1989) (upholding punitive damages against
mayor and police chief for “reckless and callous indifference” to policy or custom of inadequate
training, supervision, recruitment or discipline of officers and also against police chief for the
unconstitutional custom of breaking down doors without a warrant whenever apprehending a

felon).

For the reasons stated above, Hillard’s motion to dismiss is GRANTED as to his liability

as a policy maker and DENIED as to his supervisory liability.

Date: Jt \obe 2003
C) U



that act.” 152 F.3d 564, 581 (7th Cir. 1998). However, Hillard is not a final policy maker for
§ 1983 purposes. Ekerman v. City of Chicago, 2002 WL 1008458, at *2 (N.D. Ill. May 16, 2002)
(‘Neither the Superintendent of Police, here Hillard, nor lower-ranking officers . . . are the final
policymaking authority for matters involving the Chicago Police Department.”); See Auriemma v.
Rice, 957 F.2d 397, 401 (7th Cir. 1992). Therefore, the claim against Hillard individually as a
policy maker fails and is dismissed.

Individual Liability as a Supervisor

To establish individual liability, the individual must have “caused or participated in an
alleged constitutional deprivation.” Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986)
(quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)). For a supervisory official to
be individually liable, “there must be a showing that the official knowingly, willfully, or at least
recklessly caused the alleged deprivation by his action or failure to act.” Rascon, 803 F.2d at
274. This can be established if the official “acts or fails to act with a deliberate or reckless
disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional
deprivation occurs at her direction or with her 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)). The
official “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye
-- +.” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (quoting Jones v. City of Chicago,
856 F.2d 985, 992 (7th Cir. 1988)).

Plaintiffs allege Hillard “acted with deliberate indifference to the rights of plaintiffs in

pore

maintaining the policies, practices, and customs,” “personally participated in the unlawful
conduct,” and “knew of and condoned the unlawful conduct.” The complaint sufficiently alleges
that Hillard may have known about the policy and acted with deliberate indifference in doing
nothing to stop it. Thus, the pleading sufficiently alleges Hillard’s personal individual
involvement. Simack v. City of Chicago, 2003 WL 924335, at *6 (N.D. Ill. Mar. 6, 2003)

(denying motion to dismiss supervisory individual liability claims where plaintiffs alleged

“defendants were reckless — they knew of the [unlawful] policy and did nothing to stop it.”);


= Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge James B. Zagel Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 2094 DATE 7/31/2003
CASE SHANI DAVIS, ET AL vs. CITY OF CHICAGO
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plainti!T, defendant, 3rd party plaintiff, and (0) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ay a Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due
(4) oO Ruling/Hearing on set for __at
(5) im) Status hearing{held/continued to] [set for/re-set for] on _setfor at _
(6) a Pretrial conference[held/continued to} [set for/re-set for] on setfor at
mM Oo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at -
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
DOFRCP4(m) O Local Rule 41.1 OFRCP4i(a)(1) OO FRCP41(a)(2).
ao) [Other docket entry] Defendant Hillard’s motion (6-1) to dismiss is granted/denied in part.
al) @ (For further detail see order attached to the original minute order-]
No notices required, advised in open court. Document
No notices required. unber ofnaties a a se
Notices maiied by judge’s staff, AUG 9 4 2088
Notified counsel by telephone. dateydocketed
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SHANI DAVIS, DAMIEN JOYNER,
and QUINCY JOYNER,

Plaintiffs,

No. 03 C 2094
v. Judge James B. Zagel

THE CITY OF CHICAGO; TERRY G. ;
HILLARD, Superintendent of the Chicago meee
Police Department, in his individual capacity; GCHETED
and Chicago Police Officers K. MEERBREY,
JOHN DOE ONE, and JOHN DOE TWO, AUG 04 2003
in their individual capacities,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Shani Davis, Damien Joyner, and Quincy Joyner (“Plaintiffs”) allege that they
were stopped, detained, and searched without a warrant, probable cause, reasonable suspicion,
consent, or any other lawful basis, and thus their Fourth Amendment rights were violated.
Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 2201 against the
defendants the City of Chicago (“City”), Superintendent of the Chicago Police Department Terry
G. Hillard (“Hillard”) in his individual capacity, and three Chicago Police Department (“CPD”)
officers in their individual capacities. Hillard has moved to dismiss the complaint pursuant to

Fed. R. Civ. Pro. 12(b)(6) for failing to state a claim against him in his individual capacity.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) is to “test the sufficiency of the
complaint, not to decide the merits” of the case. Triad Associates, Inc. v. Chicago Housing
Authority, 892 F.2d 583, 586 (7th Cir. 1989). In reviewing a motion to dismiss, the court must
construe all allegations in the complaint in the light most favorable to the plaintiff and accept all
well-pleaded facts and allegations as true. Bontkowski v. First National Bank of Cicero, 998

F.2d 459, 461 (7th Cir. 1993). A complaint should only be dismissed when “it appears beyond a



doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). “A complaint that complies with the
federal rules of civil procedure cannot be dismissed on the ground that it is conclusory or fails to

allege facts.” See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).

§ 1983 Claim Against Hillard in His Individual Capacity

Plaintiffs allege that the City maintains policies, practices, and customs of: (a) failing to
adequately train, supervise, and discipline CPD officers in the exercise of their discretion to stop,
detain, and search civilians; and (b) stopping, detaining, and searching civilians without a
warrant, probable cause, reasonable suspicion, consent, or any other lawful basis. Plaintiffs
claim that these policies, practices, and customs violated their Fourth Amendment rights. The
complaint further alleges that the policies, practices, and customs are widespread, permanent, and
well-settled, thus Hillard knew or should have known about them. Plaintiffs also claim that
Hillard, to whom the City has delegated de facto final policy making authority, is responsible for
the policies, practices, and customs, acted with deliberate indifference in maintaining the
policies, practices, and customs, and acted with conscious disregard and deliberate indifference
to plaintiffs’ rights. Plaintiffs assert that Hillard personally participated in the unlawful conduct,
acted jointly and in concert with the other defendants who participated or acquiesced in the
unlawful conduct, failed to intervene to stop other law enforcement officers from engaging in the
unlawful conduct, or knew of and condoned the unlawful conduct.

Individual Liability as a Policy Maker

In Monell v. New York Dept. of Soc. Servs., the Supreme Court held that a municipality
could be liable for a custom, policy, or practice that causes a person to be deprived of his
constitutional rights. 436 U.S. 658, 690 (1978). Hillard claims that an individual cannot be held
individually liable for a policy-making role and that he is not a policy maker. The Seventh
Circuit in Armstrong v. Squadrito, noted that “if the supervisor personally devised a deliberately

indifferent policy that caused a constitutional injury, then individual liability might flow from