Appendix — Finley v. Murray

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APPENDIX A

AMENDED OPINION

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 80-1035

TONI MuRRAY,

Plaintiff-Appellant,

Vv.

CITY OF CHICAGO, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 79 C 1176—Julius J. Hoffman, Judge.

ARGUED SEPTEMBER 8, 1980—DECIDED NOVEMBER 25, 1980

OPINION AMENDED MARCH 11, 1981

Before SWYGERT and SPRECHER, Circuit Judges, and

DUMBAULD,* Senior District Judge.

DUMBAULD, Senior District Judge. Appellant in the

case at bar was the victim of a theft, and then of a

deprivation of her constitutional rights by reason of

arrest without a valid warrant. Her complaint under 42

U.S.C. 1983! was dismissed by the District Court as to

* The Honorable Edward Dumbauld, Senior District Judge

of the United States District Court for the Western District of

Pennsylvania, sitting by designation.

' Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of a State or Territory, subjects,

or causes to be subjected, any citizen of the United States or

(Footnote continued on following page)

—2a—

certain defendants, and summary judgment granted in

ower of another defendant. The circumstances are as

ollows:

Appellant’s purse and checkbook were stolen. The

theft was reported to the police. Six to twelve months

later, some of the stolen checks were cashed at various

retail stores.2 Presumably on complaints made by the

stores, appellant was arrested on charges of deceptive

Sess a and at a hearing on November 4, 1974, before

ranch 68 of the Circuit Court of Cook County all com-

plaints against her were dismissed except one which

was continued until December 9, 1974. Being under the

impression that all charges had been dismissed, she did

not appear on December 9, 1974, and a warrant was

issued for her arrest. On January 13, 1975, appellant,

pect learned of the warrant, appeared in Branch 68,

and the warrant of December 9 was quashed and

recalled by the court. On February 10, 1975, the single

complaint remaining against appellant was dismissed.

Then on March 25, 1975, several months after the

warrant of December 9, 1974, had been quashed,

appellant was arrested at her home by two Chicago

police officers, pursuant to the invalid warrant.

Although she explained to the officers that the

warrant had been recalled, she was taken to head-

quarters, forced to strip naked and submit to searches

conducted and observed by Chicago police officers. After

subsequently being imprisoned for six or seven hours,

she was released, and after again appearing before

Branch 68 on April 10, 1975, was discharged. Following

1 continued

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured in an

—— at law, suit in equity, or other proper proceeding for

ress.

2 Presumably the checks may have had her name printed on

them, and the thief knew whose name to forge. It does not

appear whether the forged checks exceeded her balance or

were rejected by the bank as forgeries.

aaiiiaes

her release from police custody she received medical

treatment and was hospitalized for five days.

Appellant’s complaint named as defendants: (1) the

City of Chicago; (2) James T. Rochford, Superintendent

of the Chicago Police Department at the time of the

events described above; (3) his successor in office, James

O'Grady; (4) the arresting officers Pappas and Ziemke:

and (5) Morgan M. Finley, Clerk of the Circuit Court of

Cook County, Illinois.

The District Court granted motions to dismiss as to

the city, relying on Monell v. Dept. of Social Services of

the City of New York, 436 U.S. 658, 690-91 (1978), for re-

uirement of a showing of policy or custom: and as to

hford and O’Grady on the ground of lack of personal

participation; and as to the arresting officers on the

ground that the warrant meres on its face to be

valid, relying on Baker v. McCollan, 443 U.S. 137, 143-

46 (1979). As to Finley, summary judgment was —

on the ground that affidavits showed that inley’s

procedures were satisfactory and adequate.

However, affidavits merely showed that the clerk’s of-

fice personnel were aware of the importance of promptly

transmitting warrant recalls and that they were to be

transmitted to the police on the same day; and that the

order in plaintiff's case was deposited in a location

similar to an “out basket,” but the affiant did not know

what happened to it thereafter. The affidavits did not

show how the documents were handled from that point

to the police department, whether by mail or by hand

delivery. The affidavits submitted by the police depart-

ment at stated that examination of the book in

which such items should have been listed failed to dis-

close any record of the recall of the warrant in

appellant’s case.

It seems clear that appellant sustained a violation of

constitutional rights by being arrested and detained

pursuant to an invalid warrant. The defendants should

not be permitted to “get off the hook” by merely point-

ing the finger at each other. Someone is surely at

fault for failing to establish or execute appropriate

—da—

procedures for preventing such serious malfunctionings

in the administration of justice. Plaintiff should be en-

titled to discovery in order to determine who is the true

culprit responsible for the gen | done her.? It would be

premature to deny appellant relief at the present stage

of the case, in advance of discovery or trial. Summary

judgment should not be granted unless it is clear that

upon no conceivable state of facts as shown by the proof

could a plaintiff recover. Poller v. Columbia Broad-

casting System, 368 U.S. 464, 473 (1962).

In the case at bar, as to the city, it is possible that ex-

istence of a policy, custom, or practice might be es-

tablished. If plaintiff succeeds in proving her allegation

that similar unwarranted arrests have occurred fre-

quently, to the knowlege of the parties involved, it might

be possible to show dereliction of duty of constitutional

dimension upon the part of the responsible officials.‘

8 Defendants argue that appellant could have been more

ey es in seeking discovery during the period between filing

f the complaint and granting of ety eee: But it is

common practice for lawyers to defer discovery until after

determination of motions which might make discovery otiose

by disposing of the case upon controlling questions of law. Or

ee in limine may sometimes ap ropriately be limited

- yar Bepones uestions. Fraley v. C.&.0. Ry. Co., 397 F. 2d

, rd Cir.

‘ It is highly probable that in due time O’Grady, a mesne

holder of the position of Superintendent of Police, will be

dismissed, as his actions have had no causative impact upon

appellant. Her request for equitable future relief and

supervision by a federal court of the office management

methods of the state officials involved is of questionable

validity. See Rizzo v. Goode, 423 U.S. 362, 378-80 (1976).

However, even though the case at bar is not a class action

there is a growing trend toward granting “structural” relie

and we express no opinion as to its. propriety here. See

Chayes, “The Role of the — in Public Law Litigation,” 89

Harv. L.R. (May, 1976) 1281, 1309; Cox, The Role of the

Supreme Court in American Government (1976) 88-98.

It is quite possible that the clerk of court, Finley, will also

ultimately be dismissed if by amplified clarification of his

(Footnote continued on following page)

pike SE

With respect to the arresting officers themselves, good

faith action under apparently valid authority is an affir-

mative defense which they must plead and prove. Pier-

son v. Ray, 386 U.S. 547, 557 (1967). But see Joseph v.

Rowlen, 402 F. 2d 367, 370 (7th Cir. 1968).

It was error for the District Court to rely upon Baker

v. McCollan, 443 U.S. 137, 143 (1979), as a basis for dis-

missing the action against the arresting officers. In that

case there was a valid warrant. It merely named the

wrong suspect, a defect similar to idem sonans.®

The judgment of the District Court is reversed and the

case remanded for trial. Circuit Rule 18 shall apply.

4 continued

procedures, he is able to establish that the methods used to

convey recall orders to the police department are appropriate

and adequate. See Schnell v. City of Chicago, 407 F. 2d 1084,

1086 (7th Cir. 1969).

Mere negligence, of course, will not support a § 1983 action

inst Finley. See Bonner v. Coughlin, 545 F, 2d 565, 568

f th Cir. 1976). Moreover, pending further clarification of the

acts it would be premature to consider whether Finley is

entitled to the defense of official immunity. See Dieu v.

Norton, 411 F. 2d 761, 763 (7th Cir. 1969).

5 The warrant erroneously named Linnie, not Leonard Me-

Collan.

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SwyGeErRT, Circuit Judge, concurring.* Although I

agree with the result announced in the majority opinion,

I —- with the implication in footnote 4 that

plaintiff must prove that defendant Finley’s actions

were intentional or reckless. The majority states that

mere aig 0 will not support a § 1983 action against

Finley, Bonner v. Coughlin, 545 F.2d 565, 568 (7th Cir.

1976). While this standard applies in many factual

situations, the majority fails to note that some official

duties are mandatory. McCray v. Maryland, 456 F.2d 1,

5 (4th Cir. 1972).

_In McCray, plaintiff alleged that the court clerk

impeded the filing of certain papers. The court held that

where an official fails to follow a court order or acts in

violation of his statutory duties, “no immunity [is]

recognized and the officer [is] held liable under section

1983 if his actions or an individual’s federally

protected rights.” 456 F.2d at 5.!

I believe that if plaintiff shows at trial that Finley had

a mandatory duty to execute the court’s order to recall

the arrest warrant, then she does not have to prove that

his failure to do so was intentional or reckless. Further,

if it is shown that Finley’s duty to execute warrant

recalls is ministerial rather than discretionary, he would

* An amended opinion was issued on March 11, 1981 re-

flecting certain changes in footnote 4 appearing on pages 4-5.

This concurring opinion was filed in response to those changes.

Chief Judge Fairchild and Judge Cudahy voted to deny re-

hearing en banc. Their votes are predicated upon the view

expressed in Judge Swygert’s concurring opinion.

' The court went on to note that when an official acts in

violation of duties imposed upon him by law, he is “entitled to

no more protection than any other state ministerial function-

ary who fails to mg a mandatory duty.” 456 F. 2d at 5

Fate aOR 5) “hes 407 F.2d 781 (5th Cir.), cert. denied, 396

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not be entitled to immunity.2 McCray v. Maryland,

supra, 456 F.2d at 4; Norwood v. Soloman, 431 F. Supp.

380 (E.D. Mo. 1977).

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Cirenit

2 The Fourth Circuit explained the rationale for distinguish-

ing between ministerial and discretionary duties in consider-

ing whether immunity is applicable:

The a of “quasi-judicial” officers . . . derives,

not from their formal association with the judicial process,

but from the fact that they exercise a discretion similar to

that exercised by judges. Like judges, they require the

insulation of absolute immunity to assure the courageous

exercise of their discretionary duties, Where an official is

not called upon to exercise judicial or quasi-judicial

discretion, courts have properly refused to extend him the

protection of absolute judicial immunity ... .

456 F.2d at 4.

satel

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TONI MURRAY,

Plaintiff,

No. 79 C 1176 v.

THE CiTy OF CHICAGO, et al.,

Defendants.

TRANSCRIPT OF PROCEEDINGS

had in the above-entitled cause before the Honorable

JULIUS J. HOFFMAN, Senior Judge of said court, in his

courtroom in the United States Courthouse, Chicago,

Illinois, on Friday, November 30, 1979, commencing at

the hour of 10:00 a.m.

APPEARANCES:

Mr. LAWRENCE SCHLAM

2125 North Clark Street

Chicago, Illinois 60614

on behalf of Plaintiff;

City OF CHICAGO DEPARTMENT OF LAW

City Hall, Room 511

Chicago, Illinois 60602

By: S. JENNIFER DUNCAN-BRICE

on behalf of Defendants City of Chicago, John

Ziemke, Theodore Pappas, James Rochford and

James O’Grady;

—9a—

HON. WILLIAM J. SCOTT

2650 South California Avenue, Room 14-C

Chicago, Illinois 60630

By: Ms. ELLEN G. ROBINSON

on behalf of Defendant Morgan Finley.

THE CLERK: 79 C 1176, Toni Murray v. The City of

Chicago, et al.; for ruling, motion of the defendants to

dismiss the complaint or, in the alternative, for summary

judgment.

THE Court: Good morning.

Ms. ROBINSON: Good morning, your Honor. Ellen

Robinson, Assistant State’s Attorney, on behalf of the

defendant Morgan Finley.

Ms. DUNCAN-BRICE: Good morning, your Honor. Jen-

nifer Duncan-Brice on behalf of the defendants Ziemke,

Pappas, Rochford, O’Grady and The City of Chicago.

Mr. SCHLAM: Good morning, your Honor. I am Law-

rence Schlam on behalf of the plaintiff in this cause.

THE Court: I have this case here for ruling on the

motions of the defendants to dismiss the complaint’or, in

the alternative, for summary judgment.

This is an action brought pursuant to 28 U.S.C. Sec-

tion 13831 and 1348 and under 42 U.S.C. Sections 1983,

1985, 1986 and 1988, to recover for the alleged depriva-

tions of the plaintiff's civil rights by the six named

defendants.

According to the complaint, the plaintiff was arrested

in 1974 as the result of certain of her checks appearing

and being unlawfully cashed at various retail stores.

The plaintiff asserts that her purse and checkbook had

been stolen earlier in the year.

On November 4, 1974, the plaintiff appeared in the

Circuit Court of Cook County to answer the charges

filed against her. At that hearing all but one of the com-

plaints filed against her were dismissed. However, it is

asserted in the complaint that the plaintiff was under

the reasonable belief that all charges had been dis-

missed on that day so that the plaintiff failed to appear

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at the next hearing on December 9, 1975. That failure

to attend resulted in an arrest warrant being issued for

the plaintiff. It is that warrant which is the subject

matter of this action.

The plaintiff alleges that she learned of the new

arrest warrant and appeared of her own volition on Jan-

uary 138, 1975. On that day the arrest warrant was

quashed and recalled by the Court.

On February 10, 1975, the case was dismissed against

the plaintiff. Notwithstanding the fact that the plain-

tiff's case had been dismissed and the fact that the

arrest warrant had been judicially recalled on January

18, 1975, the plaintiff alleges that she was arrested on

March 25, 1975, pursuant to that judicially-recalled

arrest warrant.

The plaintiff was subsequently taken to a police sta-

tion where she was subjected to a strip search and was

incarcerated for six to seven hours. The plaintiff alleges

that she was then required again to appear in the Cir-

cuit Court of Cook County on April 10, 1975, to answer

charges that were nonexistent as there were no war-

rants outstanding against her. The plaintiff further

asserts that she suffered severe emotional and physical

injuries as the result of the unlawful arrest and deten-

tion.

The plaintiff seeks both monetary and injunctive re-

lief against all of the defendants. Those defendants are:

The City of Chicago; James T. Rochford, the then

Superintendent of the Chicago Police Department; James

O’Grady, Superintendent Rochford’s successor; John

Ziemke and Theodore Pappas, the police officers who

effectuated the arrest of the plaintiff on March 25, 1975;

and Morgan M. Finley, Clerk of the Circuit Court of

Cook County.

All six of the defendants have filed motions to dismiss

the complaint or, in the alternative, for summary judg-

ment.

Numerous grounds are asserted by the defendants

and each of the motions for summary judgment is

accompanied by affidavits. The plaintiff has filed no af-

—lla—

fidavits in opposition to the motions for summary judg-

ment.

The Court will treat each of the defendants’ motions

individually and, where appropriate, will consider the

motions to dismiss without consideration of any support-

ing documents. Wholesale Auto Supply Company v.

Hickok Manufacturing Company, 221 Federal Supple-

ment 935, Eastern District of New Jersey, 1963.

Dealing first with the motion of the defendant City of

Chicago to dismiss the complaint, the Court observes

that the plaintiff asserts liability on the part of the City

of Chicago on the basis that its contro! of the ministerial

functions of the Chicago Police Department requires the

City to promulgate warrant recall procedures that will

prevent invalid arrests such as is alleged to have oc-

curred here. The plaintiff asserts that the present proce-

dure for the recall of warrants is unconstitutional as it

results in the arrest of innocent individuals. Accord-

ingly, the plaintiff alleges that the defendant City of

Chicago is liable to the plaintiff for her invalid and

allegedly unconstitutional arrest pursuant to a judici-

ally-recalled arrest warrant.

The City of Chicago seeks the dismissal of this com-

plaint as to it primarily on the ground that, as a munici-

pality, it cannot be held liable for the alleged constitu-

tional violations of its subordinates under a theory of

respondeat superior. The defendant recognizes changes

in the law of Section 1983 liability that will render a

municipality liable under certain circumstances, but

asserts that the plaintiff's complaint does not present

the Court with such a situation. This Court agrees with

the defendant City of Chicago and finds that the com-

plaint must be dismissed as to this defendant.

Until recently, municipal entities were immune from

suit under 42 U.S.C., Section 1983. Monroe v. Pape, 365

United States 167, 1961.

However, the Supreme Court decision of Monell v.

Department of Social Services of the City of New York,

436 United States 658, 1978, removed the absolute

immunity previously afforded to municipalities and their

—12a—

agencies and held that in certain circumstances, munici-

palities may be amenable to suit under 42 U.S.C., Sec-

tion 1983.

After a lengthy discussion of the history of the civil

rights statutes, the Supreme Court specifically held in

that case that the doctrine of respondeat superior has no

application to alleged violations of 42 U.S.C., Section

19838. The Court did hold, however, that a municipality

may be held liable for such violations if it is clear that:

“the action that is alleged to be unconstitutional

implements a policy statement, ordinance, regula-

tion or decision officially adopted or promulgated

by that body’s officers.”

Monell v. Department of Social Services of the City of

New York, 436 United States 658 at 690.

The Court further stated that liability will only be

imposed if such a specific policy is alleged to exist and

that policy causes an employee of the municipality to

violate the constitutional rights of another. The Monell

decision is clearly distinguishable from the present

controversy.

In that decision, the Supreme Court was faced with a

policy of the City of New York that compelled pregnant

female employees to take unpaid leaves of absence. Such

a policy required municipal employees to compel their

female subordinates to take those unpaid leaves of

absence. Accordingly, the Supreme Court held that such

a policy of the municipality could be said to cause a vio-

lation of the plaintiffs’ civil rights within the meaning

of 42 U.S.C., Section 1983.

Such a policy and resulting causation does not appear

from the plaintiff's complaint in this action. Not only

has the plaintiff failed to specifically allege what the

current warrant recall procedure of The City of Chicago

is; she also fails to specifically allege facts showing that

the policy requires a subordinate municipal employee to

violate a citizen’s civil rights. Absent such specific alle-

gations, the policy cannot be said to cause the alleged

constitutional violation and the complaint must be dis-

missed as to The City of Chicago. Jamison v. McCurrie,

—13a—

565 F.2d 483, Seventh Circuit, 1977 and McDonald v.

State of Illinois, 557 F.2d, Seventh Circuit, 1977.

Although the plaintiff has clearly attempted to draw

her complaint in order to present the Court with a case

within the limited perimeters of the Monell decision, the

Court must conclude that the plaintiff alleges only a

theory of vicarious liability under the doctrine of res-

pondeat superior as to The City of Chicago. The plain-

tiff is asserting that the employer City must be held

liable for the alleged constitutional torts of its em-

ployees based on the City’s control over the warrant

recall procedure.

The mere right to control without any control or

direction having been exercised is not enough to support

Section 1983 liability. Rizzo v. Goode, 423 United States

362, 1976.

Accordingly, since liability under 42 U.S.C., Section

1983 and 28 U.S.C., Section 1931 cannot be founded

upon such a theory, the complaint must be dismissed as

to The City of Chicago for failure to state a claim upon

which relief may be granted. Hampton v. City of Chi-

cago, 484 F.2d 602, Seventh Circuit, 1973, certiorari

denied, 415 United States 917, 1974, and Gresham v.

City of Chicago, 405 Federal Supplement 410, Northern

District of Illinois, 1974.

We deal next with the motions of the defendants

Rochford and O’Grady to dismiss the complaint.

Three of the remaining five defendants are named as

defendants in this complaint in their official capacities

as local or state government officials. The defendants

Rochford and O’Grady are being sued in their capacity

as the past superintendents of the Chicago Police De-

partment. The defendant Finley is named as a defend-

ant in his capacity as the Clerk of the Circuit Court of

Cook County. Because the liability of the defendants

Rochford and O’Grady will rest upon the same consider-

ations, the Court will determine those defendants’ mo-

tions to dismiss together. The liability of the defendant

Finley will be examined later.

—1l4a—

In her complaint, the plaintiff asserts that the defend-

ants Rochford and O’Grady have the duty to enforce and

supervise the warrant recall procedures of the Chicago

Police Department. The plaintiff alleges that the defen-

dants’ failure to properly implement and control exist-

ing recall procedures resulted in the arrest of the

plaintiff, which is the subject matter of this lawsuit.

Each of the defendants has moved to dismiss the com-

plaint for failure to state a claim upon which relief may

be granted. Although several grounds are asserted by

the defendants, the primary ground relied upon by each

is that they cannot be held liable for the alleged consti-

tutional violations of their subordinates. Each of the de-

fendants refer the Court to the well-established rule

that Government officials cannot be found liable under

the doctrine of respondeat superior.

It is clear from a review of the plaintiff's complaint

that the defendants’ positions are well-taken and that

the = must be dismissed as to these defendants

25 well.

In holding that a municipal entity may be held liable

under 42 U.S.C., Section 1983 in certain circumstances,

the Supreme Court in Monell also made it clear that:

“Local Government officials sued in their official

capacities are ‘persons’ under Section 1983 in those

cases in which a local government would be suable

in its own name.”

Monell at 690, Note 55.

Since the Court has previously determined that the

present action does not fall within the perimeters of that

decision, the Court must find another basis for imposing

liability upon these two supervisory defendants from the

allegations of the plaintiff's complaint. Absent such cir-

cumstances as existed in the Monell decision, the Court

must conclude that the defendants may only be held lia-

ble if it is clear from the allegations of the complaint

that these defendants were involved personally in the

incidents giving rise to this cause of action. Adams v.

Pate, 445 F.2d 105, Seventh Circuit, 1971.

—15a—

The allegations of the complaint as to these two

defendants are devoid of any specific facts asserting

their personal knowledge of the alleged unconstitutional

acts of their subordinates or their acquiescence in them.

Cochran v. Rowe, 438 Federal Supplement 566, North-

ern District of Illinois, 1977.

Indeed, it is only asserted that these defendants, knew

of the “illegality of the procedures, regulations and cus-

tomers regarding the recall of arrest warrants and neg-

ligently, willfully, and wantonly caused them to occur

and to continue and took and continued to take no mea-

sures to prevent them.”

Such conclusory allegations are insufficient to support

any liability on the part of the defendants Rochford and

O’Grady. Perry v. Elrod, 436 Federal Supplement 229,

Northern District of Illinois, 1977.

It is personal involvement that is the touchstone of

Section 1983 liability. Sanders v. Daley, 306 Federal

Supplement 277, Northern District of Illinois, 1969.

It is clear that a supervisory policy official can be

held liable for damages under 42 U.S.C., Section 1983

for his own personal negligent or willful conduct that is

the proximate result of a civil rights violation. Schnell

v. City of Chicago, 407 F.2d 1084, Seventh Circuit, 1969;

Moon v. Winfield, 368 Federal Supplement 843, North-

ern District of Illinois, 1973.

However, it is equally clear that there must be an

affirmative link between the alleged incidents of subor-

dinate misconduct and the supervisory approval or ac-

quiescence in such misconduct. Rizzo v. Goode, 423

United States 362, 1976.

The allegations of the complaint contain no specific

facts asserting the existence of such an affirmative link.

The plaintiff's allegations are directed only to the de-

fendants’ duties as Superintendents of Police for the

City of Chicago. There are no allegations that these

defendants were aware of the plaintiff's s.tuation and

negligently or willfully failed to act. Moon v. Winfield,

to which I have previously alluded.

—16a—

Neither does the complaint contain any allegations

that these defendants had been confronted with similar

specific situations in the past. The plaintiffs abstract

assertion that one or another constitutional right has

been violated does not require the Court to determine

that a claim has been adequately pleaded. Shakman v.

Democratic Organization of Cook County, 435 F.2d 267,

Seventh Circuit, 1970.

On the basis of the plaintiff's clearly conclusory alle-

gations as to the defendants’ knowledge of these acts

and in the absence of specific allegations of facts reveal-

ing the relationship between the defendants Rochford

and O’Grady and the alleged constitutional violations of

their subordinates, this complaint fails to state a claim

against these defendants. Saunders v. Cahill, 359 Fed-

eral Supplement 79, Northern District of Illinois, 1973;

Huey v. Barloga, 277 Federal Supplement 864, North-

ern District of Illinois, 1967.

There is no basis from which the Court may construe

the requisite personal involvement of the defendants

Rochford and O’Grady from the facts as alleged in this

complaint. Joseph v. Brierton, 431 Federal Supplement

50, Northern District of Iliinois, 1976; Grillo v. Sielaff,

414 Federal Supplement 272, Northern District of Illi-

nois, 1976.

Accordingly, the complaint must be dismissed against

the defendants Rochford and O’Grady for failure to

state a claim upon which relief may be granted.

We deal next with the defendant Finley’s motion for

summary judgment.

The defendant Finley’s liability is asserted to rest

upon his duty, as Clerk of the Circuit Court of Cook

County, to establish and correct procedures for the noti-

fication of the Chicago Police Department of those

arrest warrants which have been recalled by judicial

order. The plaintiff asserts that the defendant Finley’s

failure to implement proper warrant recall procedures

resulted in the arrest of the plaintiff in this action.

As the Court noted previously, the defendant has pre-

sented alternative motions to dismiss the complaint and

—17a—

for summary judgment. When such motions are brought

in the alternative, the Court is justified in treating each

separately and the matters outside the pleadings that

have been filed in support of the motion for summary

judgment may properly be considered. Wholesale Auto

Supply Company v. Hickok Manufacturing, to which I

have previously alluded.

In the case at bar, the Court elects to first consider

the defendant Finley’s motion for summary judgment.

It is well-established that summary judgment is ap-

propriate only where there are no genuine issues of

material fact and the movant demonstrates that he is

entitled to judgment as a matter of law. Carter v. Stan-

ton, 405 United States 669, 1972: Butler v. Goldblatt

Brothers, Incorporated, 432 Federal Supplement 1122,

Northern District of Illinois, 1977.

Based upon the affidavits and documents filed by the

defendant in support of his motion for summary judg-

ment, it is clear that this is an appropriate case for the

entry of an order granting summary judgment in favor

of the defendant Finley and against the plaintiff.

In support of his motion for summary judgment, the

defendant has filed a memorandum of the Clerk of the

Circuit Court and an excerpt from the operating man-

ual of the Clerk’s office, both of which describe the war-

rant recall procedures that were in effect at the time of

the alleged occurrences giving rise to this complaint.

The defendant has also filed the affidavits of one Robert

Grossman, the Chief Deputy Clerk of the Criminal Di-

vision of the Circuit Court of Cook County, and one Mau-

rice MecNicholas, the Deputy Clerk who was responsible

for the recall of arrest warrants on the date that the

warrant at issue herein was recalled by judicial order.

The plaintiff has filed no affidavits in opposition to

those filed by the defendant Finley. Accordingly, the

facts contained therein are to be taken as true and are

uncontroverted for the purpose of this motion. Wang v.

PRE EST ERR Maxinhall Estates, Incorporated, 531 F.2d

832, Seventh Circuit, 1976; DeMert and Dougherty,

Incorporated v. Chesebrough Ponds, Incorporated, 348

—18a—

Federal Supplement 1194, Northern District of Illinois,

1972.

A careful examination of the procedures in effect at

the time of the alleged occurrences, as shown by the

documents and affidavits filed by the defendant Finley,

shows that the warrant recall procedure of the Circuit

Court of Cook County are more than adequate to satisfy

constitutional requirements. Deputy Clerks are instruct-

ed to effectuate the notification of the Chicago Police

Department of the recall of an arrest warrant on the

same day that the judicial recall is entered. All person-

nel are aware of the serious consequences of a failure to

so notify the Police Department in a timely manner.

Several copies of the orders are filed with the Police

Department and with the Clerk’s office as well as being

placed in the official court file.

In the absence of any specific challenges to these

procedures, the Court would be unable to find that these

procedures are unconstitutional. Rogers v. Provident

Hospital, 241 Federal Supplement 633, Northern Dis-

trict of Illinois, 1965.

The plaintiff alleges only that the defendant Finley

and his subordinates “did not fulfill their constitutional

duty to communicate in a reasonable manner” the fact

that a judicial order of recall had been entered. Such

allegations are totally conclusory and fail to allege with

specificity how the warrant recall procedure is unconsti-

tutional on its face or how an unconstitutional act

occurred as the proximate result of its application and

practice as to this plaintiff. Shakman v. Democratic

Organization of Cook County, to which I have previously

referred.

In the absence of such specific allegations, the Court

must conclude that the warrant recall procedures of the

Circuit Court of Cook County are unconstitutional as

applied to the allegations of the plaintiff's complaint.

See Askew v. Bloemker, 548 F.2d 674, Seventh Circuit,

1973; Ashwell Company v. Transamerica Insurance

Company, 407 F.2d 762, Seventh Circuit, 1969.

—19a—

Furthermore, the affidavit of Maurice McNicholas

and Exhibit B filed by the plaintiff show that the proce-

dures outlined previously were followed as to the plain-

tiffs arrest warrant. At best, it can only be said that if

the Police Department did not receive notice of the

recall, the subsequent arrest of the plaintiff was the

result of inadvertence or accident. Such circumstances

cannot give rise to an action under 42 U.S.C., Section

1983. Little v. Walker, 552 F.2d 193, Seventh Circuit,

1977; Bonner v. Coughlin, 545 F.2d 565, Seventh Circuit

1976.

The documents and affidavits filed by the defendant

show clearly that there is no genuine issue of fact that is

undisputed. The purpose of a motion for summary judg-

ment is to eliminate the necessity of a trial that can only

result in needless expense and delay. Kirk v. Home

oti Company, 431 F.2d 554, Seventh Circuit,

1970.

The granting of a motion for summary judgment is a

drastic remedy, but is also one that should be applied in

appropriate circumstances. Mintz v. Mathers Fund, In-

corporated, 463 F.2d 495, Seventh Circuit, 1972.

In light of the uncontradicted documents and affidav-

its of the defendant, it is clear that this is such a case.

The Corut is unable to determine that any genuine issue

of material fact exists in this case that would result in

any judgment other than one for the defendant. Kiess v.

Eason, 442 F.2d 712, Seventh Circuit, 1971.

Accordingly, the Court must allow the defendant Fin-

ley’s motion for summary judgment and need not con-

sider his alternative motion to dismiss the complaint.

We deal next with the motion of the defendants Pap-

pas and Ziemke to dismiss the complaint.

The two remaining defendants are the only two de-

fendants who are asserted to have been personally

involved in the alleged unconstitutional arrest of the

plaintiff. These defendants, police officers Pappas and

Ziemke, were allegedly the officers who actually effectu-

ated the arrest of the plaintiff pursuant to the judici-

ally-recall warrant.

—20a—

The plaintiff asserts that these defendants knew or

should have known by reasonable inquiry that the war-

rant for the plaintiff's arrest had been recalled and that

the subsequent arrest was illegal and without probable

cause. The plaintiff asserts that despite her protests and

explanation of the circumstances, the defendants Pap-

pas and Ziemke “negligently, willfully and wantonly”

arrested the plaintiff and incarcerated her for a period

of six to seven hours.

The defendant Pappas and Ziemke have jointed filed

motions to dismiss or, in the alternative, for summary

judgment. The grounds asserted by these defendants

primarily involve their good faith in effectuating the

arrest of the plaintiff and the fact that they did not

make sufficient inquiries into the validity of the out-

standing warrant. Affidavits have been attached to the

motions for summary judgment which recite their alle-

gations of good faith and the steps they took to verify

the arrest warrant. However, the defense of good faith

can rarely be properly determined from affidavits and

would be inappropriate in the circumstances of this

case. Foster v. Zeeko, 540 F.2d 1310, Seventh Circuit,

1976; Alvarez v. Wilson, 431 Federal Supplement 136,

Northern District of Illinois, 1977.

However, such a determination need not be made in

this case as it is clear to the Court that the plaintiff has

failed to plead a claim upon which relief may be

granted and the complaint must be dismissed as to the

defendants Pappas and Ziemke.

It is axiomatic that the threshold inquiry in any

action seeking to redress alleged constitutional viola-

tions, whether under 42 U.S.C., Section 1983 or 28

U.S.C., Section 13831, must be whether, in fact, a claim

of constitutional magnitude has been properly alleged.

Butz v. Economu, 438 United States 478, 1978; Paul v.

Davis, 424 United States 693, 1976.

It is this threshold requirement that the plaintiff has

failed to satisfy in the allegations of her complaint

Notwithstanding this Court’s determination of the

motions of the other defendants in this action on other

—2la—

grounds, it is now necessary to analyze the plaintiff's

complaint in terms of whether a cognizable claim

under 42 U.S.C., Section 1983 has been pleaded. The

question of supervisory liability and the application of

the doctrine of respondeat superior is totally separate

from considerations of whether a claim has been sub-

stantively pleaded. The existence of vicarious liability is

similar to the principles of immunity and a finding of

nonliability warrants the Court to proceed no further in

its inquiry into the existence of a constitutional claim.

Dieu v. Norton, 411 F.2d 761, Seventh Circuit, 1969;

Peckham v. Scanlon, 241 F.2d 761, Seventh Circuit,

1957.

However, the liability asserted to exist against these

defendants is personal in nature and the Court must

determine whether a claim has been pleaded properly

in order to invoke Section 1983 liability.

The Court finds the present case to be governed by

the recent Supreme Court decision of Baker v. McCol-

lan, No. 78-752, decided June 26, 1979. That decision is

indistinguishable from the facts alleged in the plaintiff's

complaint. In Baker, the plaintiff was arrested and

incarcerated for several days pursuant to an arrest war-

rant that was intended for his brother, but which con-

tained the plaintiff's name on its face. That warrant was

no more invalid than the one alleged to exist in this

action. Both warrants were valid on their face and in

each situation there was an arrest pursuant to the war-

rant.

In Baker, as is alleged to have occurred here, there

were continued protests of the plaintiff that the arrest

was improper. The period of incarceration in Baker was

several days; in this action, the time spent in custody

amounted to only a few hours. On such similar facts, the

Court must find the recent decision of Baker v. McCol-

lan to be controlling.

The Supreme Court held that the plaintiff had failed

to satisfy the threshold requirement of a finding that he

had been deprived of a right “secured by the Constitu-

tion and laws” within the 42 U.S.C., Section 1983. The

—22a—

Court held that the plaintiff had been deprived of his

liberty for a period of days, but that such incarceration

was pursuant to an arrest warrant that conformed to

the requirements of the Fourth Amendment. The Court

recognized that mere detention pursuant to a valid war-

rant will, after a certain period of time and in the face

of repeated protests, deprive an individual of “liberty

without due process of law.” However, the Court con-

cluded, and this Court is in full agreement, that a deten-

tion of several days cannot amount to such a deprivation

of liberty. It is clear that a detention of six to seven

hours, also pursuant to a warrant conforming to Fourth

Amendment requirements, cannot amount to a depriva-

tion of civil rights under the Constitution.

It is now well-settled that not every allegedly invalid

arrest or imprisonment can give rise to a cause of action

under 42 U.S.C., Section 1983. That section of the Civil

Rights Act was never meant to be a fount of federal tort

law. Paul v. Davis, to which I have previously referred.

While a claim for unlawful arrest and detention may

be properly brought under Section 1983, Joseph v.

Rowlen, 402 F.2d 367, Seventh Circuit, 1968, the Court

must find that on the facts as alleged in the plaintiff's

complaint against the defendants Pappas and Ziemke,

there has been no unlawful arrest and detention of con-

stitutional magnitude and the plaintiff's claim is not

cognizable under 42 U.S.C., Section 1983.

While it appears that a possible State tort claim may

lie under the circumstances of the plaintiff's complaint,

no violation of the plaintiff's civil rights has been prop-

erly pleaded. Estelle v. Gamble, 429 United States 97,

1978; Brainerd v. Potratz, 421 Federal Supplement 836,

Northern District of Illinois, 1976.

Accordingly, the defendants’ motion to dismiss the

complaint for failure to state a claim upon which relief

may be granted must be allowed. The plaintiff can

prove no set of facts that would entitle her to relief

under 42 U.S.C., Section 1983 or 28 U.S.C., Section

1331. Burns v. Paddock, 530 F.2d 18, Seventh Circuit,

—23a—

1974; Grillo v. Sielaff, 414 Federal Supplement 272,

Northern District of Illinois, 1976.

Finally, the Court notes that a seventh defendant has

been named by the plaintiff in this action. That defend-

ant, Police Officer Meyers, has never been served with

summons and complaint. The service of summons was

returned unexecuted on April 2, 1979.

The Court also notes that the plaintiff's memoranda

filed in this action in opposition to the various motions

to dismiss are devoid of any reference to that defendant.

Since more than six months have elapsed since this

complaint was filed on March 23, 1979, the Court will

enter an order dismissing the defendant Meyers from

this action pursuant to the provisions of Rule 21 of the

General Rules for the Northern District of Illinois for

want of prosecution.

Accordingly, Miss Clerk, the motions of The City of

Chicago, James T. Rochford, James O’Grady, John Ziem-

ke and Theodore Pappas to dismiss the complaint for

failure to state a claim upon which relief may be

granted are allowed. The motion of the defendant Mor-

gan M. Finley for summary judgment is also allowed.

The defendant Meyers is dismissed from this action for

want of prosecution. This complaint is hereby dismissed

with prejudice and no costs as to the defendants City of

Chicago, James T. Rochford, James O’Grady, John Ziem-

ke and Theodore Pappas. Judgment is hereby entered in

favor of the defendant Finley and against the plaintiff

Toni Murray.

Ms. DUNCAN-BRICE: Thank you very much, your

Honor.

Ms. ROBINSON: Thank you, your Shin’:

Mr. SCHLAM: Thank you, your Honor.

(WHICH were all the proceedings had and taken on

the 14 and date aforesaid in the above-entitled

cause.

—24a—

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

March 31, 1980

Before

Hon. LUTHER M. SwYGERT, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. EDWARD DUMBAULD, Senior District Judge*

TONI MURRAY,

Plaintiff-Appellant,

No. 80-1035 vs. On Petition for Rehearing

City OF CHICAGO, et al.,

Defendants-Appellees.

ORDER

On consideration of the petition for rehearing and

suggestions for rehearing en bane filed in the above-

entitled cause by defendants-appellants, no judge in

active service having voted to grant the petition for

rehearing en banc, and all of the judges on the original

panel have voted to deny a rehearing. Accordingly,

It Is ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

* The Honorable Edward Dumbauld, United States Senior

District Judge for the District of Pennsylvania, sitting by

designation.