In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2904

CHRISTOPHER WILSON, et al.,

Plaintiffs-Appellants,

v.

KEITH PRICE, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 CV 7199—William J. Hibbler, Judge.

ARGUED FEBRUARY 10, 2010—DECIDED OCTOBER 4, 2010

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Keith Price, a Harvey, Illinois

alderman who had received several complaints about

cars parked illegally in front of Midnight Auto Express,

decided to take matters into his own hands. He drove

to the repair shop, demanded that the cars be moved,

and after an employee refused his orders, savagely beat

the employee until he was unconscious. The question

before the court is whether this conduct gives rise to
2 No. 09-2904

a federal claim under 42 U.S.C. § 1983. Although the

alderman’s actions were reprehensible, we find that they

were not made under color of state law and, therefore,

cannot serve as the basis for § 1983 liability. As a result,

we affirm the district court’s dismissal of the plaintiffs’

complaint.

I. BACKGROUND

Price was at all times relevant to this case an

alderman for the Sixth Ward of the City of Harvey (“the

City”). On May 2, 2008, Price received a number of

phone calls from his constituents complaining about

cars parked illegally on the parkway in front of Midnight

Auto Express (“Midnight Auto”), a car repair shop

located within the Sixth Ward. That evening, Price attempted to call the City about removing the cars, but

did not get a response. Price then decided to go to Midnight Auto himself. When he arrived, he spoke with

Christopher Wilson, a mechanic at the shop, and demanded that Wilson move the cars. Wilson refused.

Price then demanded that Wilson summon the owner

of Midnight Auto. Wilson told Price to find the owner

himself and then turned to walk away. Furious, Price

punched Wilson in the head several times, leaving

Wilson unconscious and with a fractured jaw.

Wilson and his wife, Camilia Booker, sued Price and the

City of Harvey for damages. In their first amended complaint, the plaintiffs asserted claims under 42 U.S.C.

§§ 1983 and 1985 against Price (Count I) and the City

(Count II), as well as state law claims for loss of consortium
No. 09-2904 3

The plaintiffs make repeated reference to the criminal case 1

against Price, in which an Illinois state court found Price

guilty of battery after a bench trial. See People v. Price, No. 08

MC6 011003-01. The plaintiffs attempt to draw our attention to

excerpts from the trial transcript, but the plaintiffs never

(continued...)

(Count III) and battery (Count IV). They also raised

an indemnification claim against the City pursuant to

745 Ill. Comp. Stat. § 10/9-102 (Count V). Price and

the City moved to dismiss all counts pursuant to

Rule 12(b)(6), arguing that Wilson failed to state a

claim against them under § 1983 and that the court

should not exercise supplemental jurisdiction over the

remaining state law claims. The district court found

that Wilson had pleaded facts demonstrating that Price

had not acted under color of state law and accordingly

dismissed the § 1983 claim with prejudice. The district

court also declined to exercise jurisdiction over the state

law claims and dismissed them without prejudice. The

plaintiffs appeal the dismissal.

II. ANALYSIS

We review de novo a district court’s decision to grant

a motion to dismiss under Rule 12(b)(6). McCready v. eBay,

Inc., 453 F.3d 882, 888 (7th Cir. 2006). “We construe the

complaint in the light most favorable to the plaintiff,

taking as true all well-pleaded factual allegations and

making all possible inferences from those allegations in

his or her favor.” Id. (citation omitted). The complaint’s 1
4 No. 09-2904

(...continued)

referenced the excerpts in the complaint, nor did they attach

them to the complaint. Because the excerpts are outside the

pleading, they are stricken from the appeal. McCready, 453

F.3d at 891. Therefore, we only consider those allegations

made within the four corners of the complaint.

“allegations must plausibly suggest that the plaintiff has

a right to relief, raising that possibility above a ‘speculative level’; if they do not, the plaintiff pleads itself out of

court.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th

Cir. 2008) (citation omitted). Dismissal is proper if “it

appears beyond doubt that the plaintiff cannot prove

any facts that would support his claim for relief.” Kennedy

v. Nat’l Juvenile Det. Ass’n, 187 F.3d 690, 694 (7th Cir. 1999).

The central question on appeal is whether the plaintiffs have alleged facts sufficient to establish that Price

was acting under color of state law during the May 2,

2008 altercation outside Midnight Auto. To be liable

under 42 U.S.C. § 1983, Price must have acted “under

color of state law” to deprive Wilson of some federally

guaranteed right. Pickrel v. City of Springfield, Ill., 45

F.3d 1115, 1118 (7th Cir. 1989). “Not every action by a

state official or employee is to be deemed as occurring

‘under color’ of state law,” Hughes v. Meyer, 880 F.2d 967,

971 (7th Cir. 1995); rather, action is taken under color

of state law “when it involves a misuse of power, possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of

state law,” Honaker v. Smith, 256 F.3d 477, 484-85 (7th

Cir. 2001). The mere assertion that one is a state officer
No. 09-2904 5

does not necessarily mean that one acts under color of

state law. Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir.

1976). A state officer’s conduct does not constitute

acting under color of state law unless it is “related in

some way to the performance of the duties of the state

office.” Honaker, 256 F.3d at 485.

The plaintiffs contend that Price was acting under

color of state law when he attacked Wilson because

Price was “performing his civic duties as 6 Ward Alder- th

man for the City” when he went to Midnight Auto in

an effort to have the illegally parked cars moved. Yet, the

plaintiffs fail to articulate which of Price’s actions at

Midnight Auto relate to his aldermanic duties. Under

the Illinois Municipal Code, aldermen are elected members of the municipality’s city council, and in that

capacity serve a “purely legislative” function. See 65 Ill.

Comp. Stat. § 5/6-4-6 (“The powers of the council

shall be purely legislative, except as may be otherwise

specifically provided by any other act or by any article

of this Code.”); see also United States v. Brewster, 408

U.S. 501, 512 (1972) (“A legislative act has consistently

been defined as an act generally done in Congress in

relation to the business before it.”). No other statutory

provision expands the powers of an alderman. See

generally 65 Ill. Comp. Stat. §§ 5/6-4-2 to 6-4-8.

Even drawing all reasonable inferences in Wilson’s

favor, the complaint’s allegations do not demonstrate

that any aspect of Price’s conduct on May 2, 2008 related

to his legislative duties, which include both the

statutorily authorized enactment of legislation and the
6 No. 09-2904

activities “related in some way” to the performance of the

legislative function. Honaker, 256 F.3d at 485. At oral argument, defense counsel conceded that an alderman may

be acting under color of state law when he performs

actions within the powers granted to him or that

he practices under common law, including legislative

investigation. Under that framework, we find that

Price was well within his aldermanic authority when

he initially called the City to request that another department move the cars about which Price’s constituents

had complained. Further, because we understand his

role as legislator to entitle him to perform the secondary

activities necessary for the fulfillment of that function,

we also find that Price would have been entitled to go

to Midnight Auto for the purpose of investigation

(i.e., getting the vehicle tag numbers, inquiring about

why the cars are parked there), and perhaps this was

Price’s initial intent. But, even assuming that he was

at Midnight Auto in a capacity legitimately related to

his role as legislator, it is indisputable that Price

crossed that line and entered the realm of law enforcement—which is wholly unrelated to the duties of a legislator—the moment he demanded that Wilson move

the cars. The plaintiffs concede as much in their brief,

stating that Price “was stepping in the shoes for the

Harvey Police [when he] proceeded to attempt to enforce

certain City of Harvey parking requirements.” Price’s

presence at Midnight Auto may have been related to

his aldermanic duties in that he was responding to constituent complaints, but even Price does not dispute that

his authority to act was limited to enacting legislation in
No. 09-2904 7

response to those complaints. It is clear that taking

such executive action was outside the scope of Price’s

aldermanic grant of authority.

That Price’s conduct was not connected to his legislative duties or related activities distinguishes this case

from cases like Cole v. City of Chicago, No. 06 C 4704, 2008

WL 68687 (N.D. Ill. Jan. 4, 2008), on which the plaintiffs

heavily rely. In Cole, the plaintiff brought a § 1983 claim

against the city and several paramedics in part based

on the allegation that one paramedic had physically

assaulted the plaintiff while removing him from an ambulance. The court explained that “[m]oving patients in

and out of ambulances is something that paramedics do

in the course of their regular duties,” which the court found

was “enough to support Cole’s argument that Ward was

acting under color of state law during Cole’s removal

from the ambulance, as an allegedly improper use of

force occurred while Ward was performing his official

duties.” Id. at *4 (emphasis added). Unlike the paramedic’s duty to remove patients from ambulances, however, Price’s demand that Wilson remove the cars

illegally parked in front of Midnight Auto (and, obviously,

his use of force against Wilson when Wilson refused)

does not constitute part of an alderman’s regular duties

whether those duties are legislative or otherwise necessary for legislation. As such, it is not a basis on which

we can find Price to be acting under color of state law.

Because Price had no enforcement authority, none of the

actions taken to compel Wilson to move the illegally

parked cars were effectuated under color of state law,
8 No. 09-2904

as one cannot misuse power one does not possess. Gibson

v. City of Chicago, 910 F.2d 1510, 1518 (7th Cir. 1990).

When officials possess no authority to act, we have

found that their conduct is outside the ambit of § 1983.

See id. (“[W]e have found no authority for expanding

this concept of [acting under color or pretense of law] to

encompass the actions of an official who possessed absolutely no authority to act but nonetheless assumed the

position of an imposter in pretending that he did.”)

(emphasis in original). See also Vanderlinde v. Brochman,

792 F. Supp. 52, 53-54 (N.D. Ill. 1992) (“Just because

[defendants, two firefighters who physically assaulted

plaintiffs] may have proclaimed themselves as ‘the law

in Oak Lawn’ does not of course make it so. . . . And

the fact that [defendants] had and exhibited badges

evidencing their status as firefighters does not somehow

convert them into the equivalent of off-duty law enforcement officers within the scope of the Section 1983 cases

that find the ‘under color of law’ requirement satisfied

in some factual contexts.”).

In Hughes v. Meyer, 880 F.2d at 969, a game warden of

the Wisconsin Department of Natural Resources provided local sheriffs with information regarding the plaintiffs’ alleged attempt to falsely imprison him, thereby

causing the plaintiffs’ arrest. The plaintiffs brought a

§ 1983 action against the warden and the sheriffs,

alleging that the defendants violated their rights

under the Fourth Amendment by arresting them without

probable cause. We found that the game warden’s provision of information about the alleged criminal act was

not under color of state law. Id. at 972. While the warden
No. 09-2904 9

had the authority to enforce Wisconsin’s gaming laws,

“his authority presumably does not extend to the general enforcement of state law; he is a game warden,

charged only with enforcing the state’s game laws, not

the full panoply of criminal laws such as those against

false imprisonment.” Id. Like the game warden in

Hughes, Price’s actions were not done by virtue of the

authority granted to him by his employment. Price had

no authority to undertake any sort of enforcement

action in response to the complaints he received about

the illegally parked cars in front of Midnight Auto, and the

plaintiffs have failed to allege facts demonstrating that

Price’s conduct was related to the performance of his

duties as an alderman.

The cases in which we have found that an official’s

conduct may constitute state action even when the

conduct exceeds the official’s grant of authority are of no

assistance to the plaintiffs here. In Lopez v. Vanderwater,

620 F.2d 1229, 1236 (7th Cir. 1980), we held that “[a]ction

taken by a state official who is cloaked with official

power and who purports to be acting under color of

official right is state action and is taken under color of

state law whether or not the action is in fact in excess of

the authority actually delegated to the official under

state law.” There, we determined that the defendant

judge’s actions in illegally prosecuting the plaintiff could

form the basis of the plaintiff’s § 1983 claim despite

their non-judicial nature because he “was able to take

his prosecutorial acts because he was cloaked with the

office of judge. His use of that office to prosecute

Lopez was action under color of state law.” Id. at 1237.
10 No. 09-2904

Unlike the plaintiff in Lopez, however, the plaintiffs

here have made no substantive contention that Price

attempted to cloak himself in his authority as alderman

during the confrontation with Wilson. The complaint is

devoid of any allegation that Price bore any indicia

of his position as an alderman or that he invoked his

aldermanic office in any way, even to identify himself as

an alderman at any point during the confrontation. Further, there are no other allegations indicating that

Price’s conduct was contemplated within the scope of

his aldermanic authority, and the failure to identify

oneself as a state official is inconsistent with being

cloaked in one’s official authority. Cf. Pickrel, 45 F.3d at

1118 (finding that off-duty police officer who physically

attacked plaintiff at restaurant could have been acting

under color of state law because he was wearing his

police uniform, displaying his badge, wearing his gun,

and his marked squad car was outside the restaurant).

Price’s confrontation with Wilson amounts to no

more than a dispute between private citizens. A private

citizen may not be liable under § 1983 unless the citizen

becomes a public officer pro tem or conspires with a

public employee to deprive a person of his constitutional

rights. Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir.

2002). The plaintiffs have made no allegation that

Price’s conduct fits into either category, and without so

alleging, the complaint fails to demonstrate that Price

was acting under color of state law. See Hughes, 880 F.2d

at 972 (concluding that game warden did not act under

color of state law because his conduct was “functionally

equivalent to that of any private citizen”). The plain-
No. 09-2904 11

To the extent that Count I purports to raise a claim under 42 2

U.S.C. § 1985, it also fails to state a claim. The only conceivably

applicable subsection is § 1985(3), which requires that a plaintiff allege, among other things, that the defendants intentionally conspired to deprive him of equal protection of the

laws. The complaint makes no such allegation, but rather

consists mainly of conclusory allegations, which is insufficient

to meet the pleading standards of Rule 8 of the Federal Rules

of Civil Procedure. See Fed. R. Civ. P. 8; Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949 (2009) (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). 

3

 To the extent that Count II asserts a municipal liability claim

against the City, it also fails. While a municipality can be

found liable under § 1983 when the municipality’s policy or

custom inflicts the injury, Monell v. Dep’t of Social Svcs., 436

U.S. 658, 694 (1978), the plaintiffs have not alleged any such

policy or custom. Instead, they argue that the City “failed to

train” Price. This, however, is not a valid basis for the

City’s liability since it does not have the ability to train, supervise, or otherwise discipline Price, who is an elected official.

See Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995)

(“It is plain that the county was properly dismissed; Illinois

sheriffs are independently elected officials not subject to the

control of the county.”) (citation omitted).

tiffs “may not avoid dismissal . . . simply by attaching

bare legal conclusions to narrated facts which fail to

outline the basis of their claims.” Perkins v. Silverstein, 939

F.2d 463, 466 (7th Cir. 1991).

As we conclude that Price did not act under color of

state law, we affirm the district court’s dismissal of

Counts I and II of the complaint. Because the federal

2 3

claims were properly dismissed, it was also appropriate
12 No. 09-2904

for the district court to dismiss the pendent state law

claims in the absence of any independent basis for

federal jurisdiction. See Williams v. Aztar Ind. Gaming Co.,

351 F.3d 294, 300 (7th Cir. 2003).

III. CONCLUSION

The district court’s dismissal of the plaintiffs’ complaint

is AFFIRMED.

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