when they hit, beat, and kicked him during his arrest. As a consequence, the Complaint
is insufficient to survive the City’s motion to dismiss.

The individual defendants have joined the City’s motion to dismiss as to Count
II, the section 1983 conspiracy claim, on the basis that plaintiff has failed to plead
sufficient facts. The Seventh Circuit has “held time and again . . . there is no requirement
in federal suits of pleading the facts or the elements of a claim, with the exceptions...
listed in Rule 9.” Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002) (abrogating
cases that stated that conclusory allegations of conspiracy were insufficient to withstand
a motion to dismiss). “Hence it is enough in pleading a conspiracy merely to indicate
the parties, general purpose, and approximate date, so that the defendant has notice of
what he is charged with.” Jd.

Rule 9 is not triggered by the facts of this case, Further, plaintiff has pleaded that
on July 12, 2001, Miller, Gonzalez, and Kobusch conspired to use excessive force during
his arrest without cause, provocation, or lawful justification for such conduct. The Court
holds that the conspiracy claim as to the individual defendants has been sufficiently
pleaded to satisfy the notice pleading standard of the Federal Rule of Civil Procedure.
Therefore, Count III is not dismissed as to them.

Finally, the City has moved to strike Linson’s prayer for punitive damages in
Counts I and I. The City’s motion to strike the request for punitive damages from the
City is granted on the grounds that a municipality is not liable for such damages under

section 1983. City of Newport v. Facts Concerts, Inc., 453 U.S. 247, 271 (1981).


v. City of Lake Geneva, 919 F.2d 1299, 1301 (7th Cir. 1990). “[A] municipality cannot
be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978). Accordingly, a municipality can only be held liable
under section 1983 if a custom or policy of the municipality was a cause of the plaintiffs
injury. Latuszkin v. City of Chicago, 250 F.3d 502, 504-05 (7th Cir. 2001). To establish
a custom or policy, a plaintiff must show that his constitutional injury was caused “by (1)
the enforcement of an express policy of the City, (2) a widespread practice that is so
permanent and well settled as to constitute a custom or usage with the force of law, or (3)
a person with final policymaking authority.” Jd. at 504.

In support of its motion to dismiss Counts I and III, the City argues that Linson’s
section 1983 claims against Miller and Gonzalez in their official capacity, i.e., against the
City, should be dismissed because he has failed to allege that a policy or custom caused
his alleged civil rights violation. In response, plaintiff relies on Wilson v. City of
Chicago, a case in which the court held that there was ancillary jurisdiction to rejoin the
City of Chicago and to hold the City derivatively liable under state law. 120 F.3d 681,
687 (7th Cir. 1997). Unfortunately for Linson, Wilson did not speak to whether the
plaintiff's section 1983 claims should be dismissed pursuant to Monell. If the City had
moved to dismiss Counts II and IV, Linson's state law claims as to the City, then his
reliance on Wilson might make sense. However, the City has merely moved to dismiss
Linson’s section 1983 claims, not his state law claims.

Upon examination of the Complaint, the Court finds that Linson has failed to

make even a bare allegation that the officers were acting pursuant to a policy or custom



ote

Conclusion
For the foregoing reasons, the Court grants the City’s motion to dismiss Counts I
and III of the Complaint [doc. 3-1] and dismisses those counts without prejudice.
Individual defendants Miller, Gonzalez, and Kobusch joined the City’s motion to dismiss
as to Count III, and the Court denies their motion.

SO ORDERED ENTERED: °Y P0f On

HON. RONALD A. GUZMAN
United States Judge



*

‘Minute Order Form (06/97)
ey

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Ronald A. Guzman than Assigned Judge

CASE NUMBER 01 C 8781 DATE 9/30/2002

CASE JEREMY LINSON vs. J. MILLER, et al
TITLE

MOTION:

[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.]

DOCKET ENTRY:

qQ)
Q)
G)
@
6)
(6)
(7)
(8)
(9)

(10)

))

Oo Filed motion of [ use listing in “Motion” box above.]
Brief in support of motion due
Answer brief to motion due. . Reply to answer brief due. :

Ruling/Hearing on set for at

Status hearing[held/continued to) [set for/re-set for] on set for at

Pretrial conference[held/continued to} [set for/re-set for} on set for at

Trial[set for/re-set for] on at

(Bench/Jury trial] (Hearing) held/continued to at

goaodaaod

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) O) LocalRule 41.1 CIFRCP41(a)(1) O FRCP41(a)(2).

His [Other docket entry} ENTER MEMORANDUM OPINION AND ORDER: the Court grants the
City’s motion to dismiss Counts I and III of the Complaint [3-1] and dismisses those counts without
prejudice. Individual defendants Miller, Gonzalez and Kobusch joined the City’s motion to dismiss as
to Count III, and the Court denies their motion. Status hearing set for 10/25/02 At 9:30a.m.

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

No notices required, advised in open court,

No notices required. number of notices

Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom

TBK deputy’s Popowe were

initials =
Dateltiriie recetved in
central Clerk's Office



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

EASTERN DIVISION
JEREMY LINSON, )
)
Plaintiff, )
)
v. ) Judge Ronald A. Guzman
)
) - 01C 8781
J. MILLER, Chicago Police Officer, )
A. GONZALEZ, Chicago Police Officer, )
THE CITY OF CHICAGO, Municipal) D
Corporation & WILLARD KOBUSCH, )
) OCKETED
Defendants. ) SEP 3 9 2002

MEMORANDUM OPINION AND ORDER

The facts of this case involve the alleged hitting, beating, and kicking of the
plaintiff by defendant police officers Miller, Gonzalez, and other Chicago police officers.
Linson has sued all defendants for unreasonable seizure and conspiracy to violate his
civil rights, in violation of 42 U.S.C. § 1983 (“section 1983”) (Counts I and II) and also
for assault, battery, and false arrest in violation of Illinois law (Counts II and IV). The
City of Chicago (“City”) has moved to dismiss Counts I and III of the Complaint. The
individual defendants, Miller, Gonzalez, and Kobusch, have joined the City’s motion to
dismiss, but only with regard to Count III. For the reasons provided in this Memorandum
Opinion and Order, the Court grants the City’s motion and dismisses Counts I and III as

to the City, and the Court denies the individual defendants’ motion to dismiss Count dil.



FACTS
On or about July 12, 2001, Linson was in the vicinity of 3655 North Sheffield
Avenue, Chicago, Illinois when Willard Kobusch stated to police officers Miller and
Gonzalez that Linson allegedly threw a beer can at and injured him. (Compl. { 8.) In the
course of arresting Linson, Miller, Gonzalez, and other Chicago Police Officers allegedly

hit, beat and kicked him without cause, provocation, or lawful justification. (Jd. ] 9.)

IS (8)

On a motion to dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure (“Rule”) 12(b)(6), the court accepts the “well-pleaded allegations in the
complaint as true and draw[s] all reasonable inferences in favor of the plaintiff.”
Hentosh v, Herman M. Finch Univ. of Health Scis./The Chicago Med. Sch., 167 F.3d
1170, 1173 (7th Cir. 1999), A claim may be dismissed only if it is beyond doubt that
under no set of facts would plaintiff's allegations entitle it to relief. Travel All Over the
World, Inc. v. Kingdom of Saudia Arabia, 73 F.3d 1423, 1429-30 (7th Cir. 1996).
However, in order to withstand a motion to dismiss, a complaint must allege facts setting
forth the essential elements of the cause of action. Lucien v. Preiner, 967 F.2d 1166,
1168 (7th Cir. 1992).

In Counts I and II, Linson alleges that the defendant police officers violated
section 1983 and deprived him of his constitutional rights when they used and conspired
to use excessive force against him by hitting, kicking and beating him during his arrest.
To state a claim under section 1983, a plaintiff “must show (1) action taken under color

of state law, . . . [and] (2) a deprivation of a right protected by the Constitution.” Brown