Petition — Rasky v. City of Chicago

Ofics-SOpFomn oom U.S. |

82-1696 APR 11 1983

oa ACE VAS,

CLERK

In The

SUPREME COURT OF THE UNITED STATES

April Tern, 1983

NO.

BENJAMIN A, RASRY,

Pleiotiff-Appellant,

Petitioner,

Defendants -Appeliees 9

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE 7TH CIRCUIT,

CHICAGO, ILLINOIS

BENJAMIN A, RASKY, Pro Se

Plaintiff£-Appellant, Petitioner

5104 West Weber Lane

Skokie, Illinois 60076

Attorney for Petitioner

wae a

+

y -a.i-

QUESTIONS PRESENTED

1. Whether Plaintiff was denied Due

Process of Law as provided in Section 1 of

Amendment 14 of the U.S. Constitution as a Re-

sult of being precluded from receiving a trial

on the merits of his claim in 4 Counts of his

2nd Amended Complaint seeking damages for vio-

lation of his Civil Rights under Title 42 of

U.S. Code, Sec. 1983, and otherwise, as set

forth in his Jurisdictional Statement, in grant-

. ing the Motion of the City Defendants to dismiss

his Complaint, and the Motion of the Cook County

Defendants (Judges Jorzak and Whiting) for judg-

ant on the pleadings on the ground that the

Complaint failed to state a claim upon which re-

lief can be granted.

2. And whether the Court erred in denying

Plaintiff leave to file a 3rd Amended Complaint

-a,. li-

instanter, submitted by him in his Motion for

Reconsideration of the Order of Dismissal of

his 2nd Amended Complaint, as granted by the

District Court, to allege the finding of the

Court in the Order of Dismissal

"that the City was acting pursuant to an

official policy or custom which caused the

Constitutional deprivation"

and for no other reason so as to meet the

Court's requirement in setting forth a suffi-

client Complaint as Plaintiff inferred from

the decision, other chien aeliitne forth in

greater detail in the 3rd Amended Complaint

the unusual hostility displayed against him

by the Defendants in support of his claim

under Section 1983.

3. And whether the United States Court of

Appeals erred in affirming the Decision of

the District Court.

|

“~~ 558

im,

i.

TABLE OF CONTENTS

OPINIONS BELOW.....ceseccees

JURISNICTION...-eeecevevvees

QUESTIONS PRESENTED.....+++-

STATEMENT OF THE CASE......-

REASONS FOR GRANTING THE

WEE co oceceoe erences o8ee ee

CONCLUSION. ccccccescccceseece

APPENDIX "A" -- Opinion of

U.S. Circuit Court

Of AppealS......seeee

APPENDIX "B" -- Appeals Court

Denying Petition for

Rehearing.....eeeeees

APPENDIX "C" -- Memorandum

Order District Court

Dismissing Complaint,

StC. coeccsccescosveec

APPENDIX "D" -- District

Court Order Denying

Motion to Vacate and

For Leave to File 3rd

Amended Complaint.and

for Reconsideration...

APPENDIX "E" -- 2nd

Amended Complaint....

Page

30

‘1A

2A

3A

4A-B

5A

ii.

TABLE OF AUTHORITIES

Page

Chicago Building Code

(Chap. 78-18)Sec. 18.1

(Pg. 6) -- Appendix E,

Exhibit 1 & 2.

"Responsibilities of

owners and occupants’....... 7

Ill. Civil Practice Act,

Chap. 10, Sec. 42(2)......-. 16

Brown v. Gill 343 Ill.

App. 460 CLP ORE oie eeubeeéec.e 16

Title 42 of the U.S. Code,

Sec. Dh. «d6h6 2060s ten é.0 18

Moore's Fed. Civil Practice

Vol. 3 Chap. 15, Pg. 79,

Rule Loc? Labacdedvecanessos 20

McDonald v. Hall (CA lst,

(7976) 579 F 2A A[BO.cccscee 22

Securities and Exch. Comm.

v. Universal Serv. Assn.,

106 F 2d PS kes ye ei eee aw és 21

U.S. v. Schefrin, 14 R.F.D.

Re Dr ah aie ek pie a ake wikis @ Since a ane © 21

Sink v. Mutual life Ins. Co.

of N.Y., 56 F Supp. 306

(1944) -cccccccwcccccccseccece 21

Howard v. U.S.,372 F 2d

294 (2967) cecisccecremesmecces 22

Buder v. Bell, 306 F 2d

71 (2962). 60 cb bie0 bee weebwece 22

}

“iii.

Stump v. Sparkman, 435 U.S.

D6 6 6666 B06 0 Coe HO CC EBEOCE

Holmes v. Nelson, 148 Ill.

App. 554 C1909) wcccccoccoce

Almon v. Sandlen, 603 Fed

2d 503 CAP edacdodeces asec

Crowe v. Lucas, 595 Fed

2a 985 a4 y. ) Aer ee

Peterson v. Stanczak, 48

Temes 426 (1969) .ccccccce

McCray v. State of Md.,

456 FP 24 (1972) cccccceccce

Martinez v. Chavez, 574 F

24 1083 C1972) cccvecccccesecs

Muller v. Wachtel, 345 F

Supp. 160 (1972). .ceccccce

Ex Parte Virginia 100 U.S.

399 (1879) .ccccccccccccces

Doe v. Richards, 399 F

Supp. 553 by ea ee

Frame v. Yenni, 347 So.

2nQ@ 30S: C1977) eccvecccececce

Qwen v. City of Independence,

100 S.Ct. 1398 (1980).....

22

23

23

23

240

24

24

24

25

25

26

' 28

re, yee

In The

SUPREME COURT OF THE UNITE” STATES

April Term, 1983

NO.

BENJAMIN A. RASKY,

Plaintiff-Appellant,

Petitioner

vs.

CITY OF CHICAGO, a Municipal Corporation,

Et Al (Same as on Cover),

Defendants-Appellees,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE 7TH CIRCUIT,

CHICAGO, ILLINOIS

To the Justices of the Supreme Court of the

United States:

Petitioner, Benjamin A. Rasky, respect-

fully prays that a Writ of Certiorari issue

to review the judgment of the United States

Circuit Court of Appeals for the 7th Circuit

of November 16, 1982, affirming the Orders

«2@

of the United States District Court for the

Northern District of Illinois, Eastern Divi-

sion, dismissing Plaintiff's claim in his

2nd Amended Complaint against all Defendants

in this suit on their Motions on the Pleadings

only, and denying him leave to file a 3rd

Amended Complaint, no trial having been had.

Plaintiff's 2nd Amended Complaint set forth

4 Counts seeking damages for violation of his

Civil Rights under Title 42 of the U.S. Code,

Section 1983, and otherwise as set forth in

his Jurisdictional Statement, as did the

Proposed 3rd Amended Complaint with the addi-

tions as set forth in "Questions Presented”

herewith.

OPINIONS BELOW.

The opinion of the United States Circuit

Court of Appeals is unpublished, and

reproduced in Appendix "A" to this Petition.

«3e

Its Judgment was entered on Noveinber 16,

1982 and the Petition for Rehearing presented

by the Plaintiff-Appellant was denied on

January 13, 1933, sonsadueed in Appendix "B"

to this Petition,

JURISDICTION

The District Court had jurisdiction

pursuant to Amendment 14 of the U.S. Consti-

tution and Title 42 of the U.S. Code, Sec.

1983, commonly known as the Civil Rights Act

of 1871, also Section 1988 thereof and

Title 28 of the U.S.C.A., Sec. 1343 thereof.

The occurrences took place in the 7th Judicial

District. The Jurisdiction of this Court

rests on 28 U.S.C. Sec. 1257(3).

PARTIES

All parties to this proceeding are set

forth.on the cover.

“he

STATEMENT OF THE CASE .

On June 3, 1980, Plaintiff filed a

Complaint for damages against the Defendants

in 4 Counts for violation of his Civil Rights.

The first 2 Counts were for denial of Motions

tenants

to implead/under the City of Chicago Ordinances,

in Housing Court Proceedings referring to build-

ings owned by Plaintiff, as Parties Defendants’

by reason of constant interference, vandalism,

destruction and nonpayment of rent by them; the

3rd Count for a denial of Plaintiff's Motion to

implead Contractors as Parties Defendants, an.

had fraudulently failed to make necessary

repairs as contracted to bring a building into

proper repair so as to comply with Court's

_ Orders with the result that the Court ordered

the building vacated, and the 4th Count for the

entry of an Ex Parte Judgment against him on

January 10, 1980 for $7,600.00 for housing yio-

ie.

o§<

lations long after he had sold the buildings

and where there had been no service of sum-

mons on him, being returned by the Sheriff

"not found."

For several years before the proceedings,

Plaintiff encountered great difficulties in

trying to operate the buildings, furnished

apartment hotels, for they were in a changing

neighborhood in Chicago. They were located

at 5726-8 Winthrop, 5623-5 Winthrop, and

5309 Winthrop (NE corner Berwyn). Great inter-

ference and vandalism by tenants and others,

destruction, frequent incendiary fires, build--

ing invasions by squatters through tenants

with takeover by criminal elements with hardly

any income, (finally none), to meet expenses

took place.

Any improvements made were sabotaged,

Attempts at eviction failed, for they managed

to get refuge in remaining tenants’ apartments;

a6e

the managers and janitors feared the tenants

and squatters. The destruction was so great

that, as an example, at 5726 Winthrop,

Plaintiff spent over $25,000 to rehabilitate

it, which had been wrecked in 1973-4. On

completion, the Housing Court case was dis-

missed for compliance on Sept. 23, 1976.

One month later the building was wrecked

again. The other buildings suffered the same.

Then too, Plaintiff encountered protlems

getting contractors to make repairs as needed,

Some of those hired defrauded Plaintiff in .

taking money without doins the necessary work

in correcting building violations ordered,

The Ordinances of the City of Chicaso

in the Chicaso Building Code (Chapter 78-18)

provides for "Responsibilities of Owners and

Occupants"; Sec. 18.1 referring to "Responsi-

bilities of Occupants" provides keepin: the

unit that he occupies, also plumbing and

oJe

and other fixtures that he controls in a

sanitary and safe condition, to use reason-

able care in the proper use thereof and

other provisions all as set forth in the

Ordinance. Compliance with the Ordinance

by the tenants was necessary. All is set

forth in Plaintiff's 2nd Amended Complaint

(Appendix "E").

In an effort to correct said problems,

Plaintiff filed Motions in the Housing Court,

first (Exhibit 2 in Count I) for 5726-8 Win-

throp, then for 5309 Winthrop (Exhibit 3 in

Count IL) to implead tenants as Defendants

who had interfered with Plaintiff's efforts in

Operating the buildings, and then (Exh. 4 in

Count IIL) to implead defrauding contractors

in not bringing 5625 Winthrop in proper repair

as contracted, The Motions in the first 3 Counts

were Opposed by Defendants Judge Jorzak, City

-8-

and Corporation Counsel and denied. The Judge

then ordered the buildings vacated. As a di-

rect result, Plaintiff was compelled to

sacrifice the buildings, one, 33 units aban-

doned in mortgage foreclosure where only $43500

remained due, and the other 2, 63 and 52 units

disposed of at a loss of over $533,000.

The 4th Count was for damages for the entry

of an Ex Parte Judgment against Plaintiff by

Defendant Judge Whiting for $7600 on Jan. 10,

1980 for housing violations occurring long

after he had sold the building on Jan. 17, 1977

and where no prior service of summons was ever

had on him, the Court having no Jurisdiction.

Although the Housing Court has a Court Re-

porter in attendance taking testimony, no Trans-

cripts were taken of the proceedings, although

requested by Plaintiff. No Orders were entered

Or available. Although the Court in its

o9-e |

Opinion (Appendix "A", page 7) stated that

the State Courc's files (Half Sheets) con-

tained such information, that was not true

for that practice (Half Sheets) was created

later. Accordingly, no records of the pro-

ceedings were available to Plaintiff for use

in an Appeal in the State Courts. Then again

the Court heard the Hearings in all 3 Cases

in the Housing Court as though they were con-

sOlidated as one Case although that was not so,

The Proceedings were controlled completely by

the Corporation Counsel.

All of the Complaints related to and con-

tained the same facts, the first 2 being amen-

ded only to change some parties ant nothing

else. In his Motion of Jan. 28, 1981 to vacate

the Order of Dismissal of his 2nd Amended Com--

plaifit on Dec. 5, 1980, and for leave to file a

3rd Amended Complaint instanter, he did not

‘-10-

present it to bypass the presentation of nis

Memorandum for Reconsideration of the Order of

Dismissal but to supplement: it. It was in effect

the lst Amended Complaint, and should have been

so considered by the Court. Plaintiff was en-

titled to file it as a matter of course and it

should have been so considered by the U.S. Court

of Appeals and not as set forth in Pace 4 of its

decision of Affirmance (Appendix "A").

It was presented to allege the findings of

the Court (Appendix "A" pace 4)

"that the City was acting pursuant to an

official policy or custom which caused the

constitutional deprivation,"

so as to meet the Court's requirements in setting

forth a sufficient complaint even thouzh Section

1983 does not set forth "official policy," as

Plaintiff inferred from the Decision. In addi-

tion the 3rd Amended Complaint merely set forth

in greater detail the unusual hostility displayed

-against him by the Defendants, in support of his

claim under Sec. 1983.

elie

It shows now they had singled him out in

their prosecution of him as a scapegoat for

all furnished apartment hotel building owners

to make an example of him to the community

without regard to the circumstances. They

attempted to give en impression that they

were correcting great social sideband al-

though created by unbridled vandalistic

wreckage without fault on the part of the

Plaintiff, and without income to meet such

wbeckeae.

The harsh treatment received by the

Plaintiff from the Court Personnel amounted

to a denial of basic rights to which he was

entitled. Best evidence of the forexoing was

when he asked for consideration and relief

from harsh orders as fines or Motions to va~-

cate, he was confronted by Defendant McCaffrey

(Ass't Corporation Counsel), without any

basis whatsoever:

"I think Mr. Rasky, before he can come

before the Court with clean hands and

present argument to this Court, he

should pay the fine which was imposed".

Or on whether Plaintiff was sworn as a wit-

ness in argument, these remarks from Defendant

Judge Jorzak:

"I can only come to one corclusion, Mr.

Rasky, that your statements even where

they are made under oath, lack some

credibility";

Or when Plaintiff asked for 30 days to com-

plete the work, Judge Jorzak:

"Do you want 30 days in the House of Cor-

rection or the County Jail or wnat? That

is what is going to happen if this build-

ing isn't vacated",

Or where Plaintiff asked to implead the two de-

frauding contractors as Defendants, in denying

the Motions, Judge Jorzak said:

"I don't care what you do, but you are not

going to clutter up this law suit with some

spurious claims against contractors".

The vandalism, destruction, invasion by

criminal elements was so great that Plaintiff

«13

called the City Police for help. They refused

to enter the buildings to eliminate the problems,

merely passing by the exterior, and dire-ted

Plaintiff to hire a Security Guard. The Secur-

ity Guard hired, because of the circumstances,

turned out to be another criminal. On Plain-

tiff's attempting to correct the Guard, he was

assaulted by the Guard, That was at 5726 Win-

throp which was wrecked within 1 month after the

Housing Court suit was dismissed by reason of

compliance,

Thereupon, Plaintiff collapsed, entered a

hospital where he underwent open heart surgery

on November 24, 1976. On his release, he was

unable to continue furcher, and as previously

mentioned, sacrificed the buildings.

-14- °

REASONS FOR GRANTING WRIT.

Petitioner respectfully submits that

the U.S. Circuit Court of Appeals erred in

affirming the decisions of the District Court

(1) which dismissed his 2nd Amended Complaint

in granting the Motions of the City Defendants

to Dismiss and of the Cook County Defendants

(Judges Jorzak and Whiting) for judgment on

the pleadings on the ground that the Complaint

failed to state a claim upon which relief can

be granted, also denying Plaintiff's Motion

for Reconsideration of the Order of Dismissal,

thereby denying Plaintiff Due Process of Law

as provided in Section 1 of Amendment 14 of |

the U.S. Constitution as a result of being

precluded from receiving a trial on the

merits of his claim in 4 Counts seeking

damages for violation of his Civil Rights

under Title 42 of the U.S. Code, Sec. 1983

and otherwise; and

-15- .

(2) which denied him leave to file a 3rd

Amended Complaint instanter, submitted by

him with his Motion for Reconsideration

of the Order of Dismissal of his 2nd Amen-

ded Complaint, to allege the finding of the

Court therein

"that the City was acting pursuant to an

official policy or custom which caused the

Constitutional deprivation",

and for no other reason so as to meet the

Court's requirement in setting forth a suf-

ficient Complaint as Plaintiff inferred

from the decision, other than setting forth

in greater detail in the 3rd Amended Con-

plaint the unusual hostility displayed

against him by the Defendants, in support

of his claim under Section 1983.

The Complaints, including both the 2nd

and 3rd Amended Complaints, alleged ’

-16- .

sufficient facts to plead a cause of ac-

tion, alleging among other items the word-

ing of Sec. 1983 in Paragraph 2 of said

Counts and elsewhere. The Illinois Civil

Practice Act, Chap. 10, Sec. 42(2) provides:

"No pleading, is bad in substance which con-

tains information as reasonably informs tie

opposite party of the nature of the claim

or defense which he is called upon to meet".

The Defendants were reasonably informed of

the nature of the claim which they were

called uppn to meet,

Since all of the Defendants have filed

Motions to Dismiss Plaintiff's Complaint,

although the Defendant Judges designated

theirs as Motion for Judgment on the Plead-

ings (the same in law),

"their motions to dismiss the complaint ad-

mits the truth of all well pleaded facts

in the pleading of the opposite party”

(Plaintiff's Complaint).

_ Brown v. Gill 343 Illinois App. 460 (195)).

for the purpose of this hearin; to include

o17Je

the allegations of denial of Motions to im-

plead in Counts I and II (Paragraphs 12)

dectructive tenants under the City Ordinance

as parties defendant, Plaintiff alleging

"although beyond authority and judicial dis-

cretion the Order is not entered" (referring

to a lack of any record whatsoever to show

the refusal to enter the orders to implead

those tenants as defendants), not even being

able to get a Transcript of the Record for

Judicial Review; similarly in Count III,

Para. 14, the refusal to implead defrauding

Contractors as Defendants without any Orders

thereof, and in Count IV wherein the Defen-

dants City, Corporation Counsel and Judge

Whiting had entered an Ex Parte Judgment

against Plaintiff on Jan. 10, 1980 in the

sum of $7,600 without any prior service of

summons on him, said summons having heen re

turned "not found" by the Sheriff, for

-18- ,

alleged violations occurring long after

Plaintiff had sold the building, the true

owners not being made Defendants although

their identity were known by the Defendants,

and wherein the Court was wholly without

Jurisdiction. This was but further evidence

of their intense hostility towards Plaintiff,

aud conduct in violation of his Civil Richts.

Since the proceedings were filed by

Plaintiff Pro Se for damages for violations

of his Civil] Rights as hereinabove set forth

under Title 42 of the U.S. Code, Sec. 1983,

commonly known as the Civil Rights Act of

1871, and otherwise as set forth in the

Jurisdictional Statement (Page 3 hereof, it

is in order to recite Section 1983

"Every person, who under color of any statute,

ordinance, regulation or usage of any state

or territory, subjects or causes to be subjected,

any citizen of the U.S. or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

; -19-

by the Constitution and Laws, shall be

liable to the party injured in an action

at law, suit in aod or other proper

proceeding for redress"

Incidentally, the District Court in its

Decision (Appendix "“c", page 4) erred in

its ruling that in setting forth a good

claim upon which relief can be granted,

"Plaintiff ignores the fact, however, that

a valid claim against the City must be sup-

ported by an allegation that the City was

acting pursuant to an official policy or

custom which caused the Constitutional

deprivation, the City cannot be liable on

the basis of respondeat superior",

for such ruling of official policy or cus-

tom" is not contained in or a part of Sec-

tion 1983. Such wording was not necessary

accordingly to have been set forth in the

Complaint in order to set forth a good

claim, although its intent was mentioned

therein by Plaintiff. Nevertheless, in

order to present a Complaint deemed accept-

-able to the Court, he set forth said language

(the Court's Decision) in his 3rd Amended

Compla int.

“4 Bey MO id Pa toy ds of

-20-

The 3rd Amended Complaint was in effect

the lst Amended Complaint, as set forth in

‘Pages 9 - 13 hereof, being the first con-

tested pleading, and should have been so

considered by the Court, and Plaintiff

should have been entitled to file it as a

matter of course: it was presented to meet

the District Court's Requirements in setting

forth a cause of action by reciting it as be-

ing a matter of “official policy" of the City

and the other Defendants, as Plaintiff infer-

red from the Decision. In addition, he set

forth in greater detail the unusual hostility

displayed against him by the Defendants, in

support of his claim under Sec. 1983. |

Contrary to the Circuit Court of Appeal's

decision (Appendix "A" Pg. 3) in affirming de-

nial of granting Plaintiff leave to file the 3rd

Amended Complaint (Exhibit A Pg. 3), Moore's

Federal Practice Vol. 3 Chap. 15 on Pg. 79 re-

ferring to Amended and Supplemental Pleadings,

Rule 15.07 (2) Operation of Rule Cites:

"It was unclear from the record the sequence

=2l@

of the following events: (1) Plaintiff's

filing a motion to amend and the Court's

denial of it, (2) defendant's filing a mo-

tion to dismiss . . . and (3) the grant of

summary judgment. The court of appeals

therefore refused to affirm the district

court's denial of the motion to amend. The

controlling standard of Rule 15 (a) entitles

a party to file an amended pleading once pri-

or to the adverse party's serving a respon-'

sive pleading, which does not include a mo-

tion to dismiss or for summary judgment. Here

plaintiff may have had the right to amend

prior to the court's acting . . . And even

if he were not entitled to amend, the court's

denial would require some justification...

The present record did not disclose the basis

for the denial and the case was remanded for

explanation or consideration.”

McDonald v. Hall (CA lst, 1978) 579 F. 2d

120.

Other authorities supporting this position

are:

Securities and Exch. Comm. v. Universal

Service ASSn., 106 F. 2d 232 etc., vol. 42

Moore's Fed'l Practice Sec. 243; U.S. v.

Schefrin, 14 R.F.D. 462; and Sink v. Mutual

Life Ins. Co. of N.Y., 56 F. Supp. 306 (1944),

those cases holding amendment in order when

"the ends of justice will be promoted by amend-

ment" and where “it is a substitute for the

original pleading and relates to the same

facts that existed when suit was started.”

The Circuit Court of Appeals accordingly er-

red in affirming District Court's Decision de-

nying Plaintiff leave to file a 3rd Amended

Complaint Instanter.

The hostility of the Defendants towards

@22@

Plaintiff, particularly as set forth in

Pages 9-13 hereof are set forth with greater

specificity in the 3rd Amended Complaint,

but are also set forth sufficiently in the

2nd Amended Complaint, and the previous ones,

and disclose such prejudice and animosity to-

wards Plaintiff amounting to a denial of basic

rights to which he was entitled, and are a vi-

Olation of due process and equal protection

of the laws guaranteed by the 14th Amendment,

Sec. 1 of the U.S. Constitution.

Such conduct by the Defendants in the mis-

treatment of Plaintiff is set forth in the

following cases:

"Howard v. U.S. 372 F 2d 294 (1967):

"Due Process is denial where the procedure

tends to shock the sense of fair play,” and

Buder v. Bell 306 F 2d 71 (1962):"Denial of

due process is conduct that shocks conscience

and offends sense of justice.”

The Court of Appeals in its decision (Ap-

pendix "A" Page 5) states:

In Stump v. Sparkman 435 U.S. 349 the Su-

preme Court noted that a "judge will not be de-

prived of immunity,,only when he has acted in the

clear absence of all jurisdiction."

thereby affirming the order of dismissal as to

. 3 -23- -

’ Judge Jorzak; and then as to Judge Whiting states

"Immunity is lost only if the Judge knows that

he or she lacks jurisdiction or the Judce acts

in the face of a clearly valid statute or case

law expressly depriving the jud.e of jurisdic-

tion. Id. Here, because the apnellant alleces

neither that Jud:e Whiting acted knowin; that

sne lacked jurisdiction over the appellant nor

that any clearly valid statute or case law ex-

pressly deprived Judze Whiting of personal juris-

diction over him, the district court's dismissal

of the complaint against her must also be affirme!

The Court erred in its decision affirming the

dismissal of the Judges and Court Prosecutors.

Taking up the Whiting dismissal, the following

cases are particularly applicable to Judge

Whiting's judgment herein.

"The Court had no jurisdiction over a defendant

On wnom no service was had and who made no

appearance."

Holmes v. Nelson 148 111. App 554 (1909)

Unless he acts in clear absence of all jurisdic-

tion Jud-:e has absolute immunity from liability

or damages.

vis Almon v. Sandlen 603 Fed 2d 503 (1979) also

. Crowe v. Lucas 595 F 2d 985 (1979)

Clearly Defendant Whiting had no immunity

here for Plaintiff had not been served with

summons and had not filed an appearance when

o2he

the Ex Parte Judgment was entered against

him for $7,600.00.

Then again referring to Defendants Judge

Jorzak and the Prosecutors, total absence of

jurisdiction is not the only reason for judi-

cial liability under the Civil Rights Act.

"Judges are not absolutely immune from lia-

bility to damages under Civil Rights Act."

Peterson v. Stanczak 48 F.R.D. 426 (1969)

"Privilege of absolute judicial immunity

should be applied sparingly ..., since to give

too wide a scope of vrotection ... would

effect a judicial repeal of conzressional vur-

pose to make liable everyone who under color

of state law abridzes a citizen's richts."

McCray v. State of Maryland 456 F 2d 1(1972)

"State Trial Judge and Prosecutors were immune

from civil rights liability where plaintiff

made no allegations of fact which would support

finding that they acted outside scope of their

judicial or prosecutorial duties."

Martinez v. Chavez 574 F 2d 1043 (1972) also

Muller v. Wachtel 345 F Supp 160 (1972)

Plaintiff in his Complaint made allegations

of fact that the actions and orders of the De-

‘fendants were beyond the scope of their authority

and judicial and prosecutorial discretion.

-25-

There are further exceptions (referring

to lack of Judicial Immunity). Application

of the doctrine of judicial immunity is

restricted to the following areas: (1) ...

when judges are faced with suits involving

their judicial as opposed to their minis-

terial or administrative duties, and (2) «,.

when officials are sued for damages,

"Ex Parte Virginia 100 U.S. 399 (1879),

quoted in "Doe v. Richards 399 F Supp 553

(1975) first noted this distinction as to

immunities:

"Whether an act is judicial as opposed to

ministerial or administrative is to be de-

termined by the character of the act and

not the actor,"

The Court held in those cases that the Chief

Judge, as an administrative head, and the

Judge who did not permit Blacks to Jury

Service were not performing Judicial, but

ministerial functions, and had no immunities.

_ -26- ‘

Similarly, here the Defendant, Judze ‘

Jorzak, was only performing a ministerial “

act and not a judicial act (requiring use

of discretion) when asked to implead tenants,

"Occupants" in Counts I and II, as Defendants

under provisions of the Chicago City Ordinance

in the Housing Code (Exhibit 1 of the Complaint)

as was the Plaintiff as "owner" impleaded as a

Defendant, The dismissal of Judge Jorzak was

accordingly an error. He was only performing

a ministerial and not a judicial act in the

Housing Court proceedings to implead IMR aia

There was no discretion required,

Frame v. Yenni 347 So. 2nd 309 (1977) cited

in Adden v. Middlebrooks 79-1810 defines a

ministerial act as:

"one in which a persom perforns in a civen state-

ment of facts, in a prescribed manner in obedience

to the mandate of legal authority, without re -ard *

to, or the exercise of his own judgement, upon

the propriety of acts being done." ‘

* -27- a

The Court of Appeals erred in its

Opinion on Page 6 in affirming the decision

. of the District Court dismissing Plaintiff's

2nd Amended Complaint and denying him leave

to file a 3rd Amended Complaint instanter,

stating

"The Appellant's 2nd Amended Complaint simply

does not allege any policy or custom of the

City of Chicago which caused a constitutional

deprivation. Were we to consider the Appel-

lant's 3rd Amended Complaint, it would be

equally deficient, since it merely makes a

conclusory allegation and does not contain

the "highly specific factual averments" re-

quired to defeat a motion to dismiss in Civil

Rights Act cases."

1 On page 10 hereof, Plaintiff alleged that

he presented a 3rd Amended Complaint to

allege the findings of the Court

"that the City was acting pursuant to an

official policy or custom which caused the

constitutional deprivation"

so as to meet the Court's requirements in set-

ting forth a sufficient complaint even though

Sec. 1983 does not set forth "official policy",

as Plaintiff inferred from the Decision,

- ~28-

The Court's Decision is further reason

why Plaintiff should have been given leave to

file a 3rd Amended Complaint in accordance with

the decisdon of Securities and Exchange Commis-

sion case (Page 21 herein) that Amendment is in

order when the ends of justice is promoted thereby.

The highly specific factual averments" are set

forth in the 3rd Amended Complaint, and was set

forth in the 2nd Amended Complaint to allege a

good cause of action. Both complaints set forth

sufficient issues of fact which should have suf- *

ficed the Court in permitting the case to be P

heard at a trial on the merits thereof,

The claimed immunity of the Defendant City

of Chicago from liability for violation of the

Plaintiff's Civil Rights under Section 1983

whereby the Court of Appeals affirmed the Dis-

trict Court's dismissal of Plaintiff's Complaint

was erroneous. Plaintiff's argument is supported

*

by Owen v. City of Independence 100 S.Ct, 1398

(1980):

-29- .

The Defendant City of Chicago accordingly

had no immunity whatsoever.

The Court in OWEN on Page 1401 Held:

"A municipality has no immunity from liabil-

ity under Sec. 1983 flowing from its constitu-

tional violations and may not assert the good

faith of its officers as a defense to such

liability."

The Court further held on Page 1423:

"After today's decision, municipalities will

have gone in two short years from absolute in-

munity under Sec. 1983 to strict liability."

The Circuit Court of Appeals erred in any

event in affirming the Decision of the District

Court dismissing Plaintiff's 2nd Amended Com-

plaint and denying him leave to file a 3rd

Amended Complaint instanter.

-30-

CONCLUSION

WHEREFORE, Plaintiff-Appellant, the Pe-

titioner herein, respectfully prays that this

Court's Writ of Certiorari issue and the

Judgment below be reversed, that Plaintiff

be given leave to file his 3rd Amended Com-

plaint instanter, or in the alternative, the

2nd Amended Complaint be reinstated, and that

the Cause be remanded to the District Court

for trial.

Respectfully submitted,

- BENJAMY/N &. BRASKY, Pro Se

Attorfey at Law

Plaigfiff-Appelléent,

5104.West Weber Lane

Skokie, Illinois 60077

679-8992

Petitioner

APPENDIX A-

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

(Submitted November 1, 1962)*

November 16, 1982

Before

Hon, Harlington Wood, Jr., Circuit Judge

Hon, Richard D. Cudahy, Circuit Judge

Hon, Jesse E, Eschbach, Circuit Judge

BENJAMIN A, RASKY, Appeal from the

United States District

Court for the Northern

District of Illinois,

No, 81-2046 Vs, Esstern Division,

CITY OF CHICAGO, et al., ) No. 80 C 2821

)

Plaintiff-Appellant,

Se eee

Defendants-Appellees, ) JOHN POWERS CROWLEY,

Judge.

ORDER

The issue on appeal is the liability under 42

U.S.C, $1983 of the City of Chicago, city corpora-

tion counsels end state judges for damages allegedly

resulting from their actions in opposing end deny-

ing the eppellant’s motion to implead parties defend-

ent in actions before the Cook County Circuit Gourt,

* After preliminary examination of the briefs,

the Court notified the Parties that it hed tena-

tively concluded that #rgument would not be helpful

to the Court in this case, The notice provided

thet any party might file a *Statement es to Need-

for Oral Argument, " See F,R,A,P, 34(@); Circuit

Rule 14(f). Having considered the plaintiff-

appellant's Stetement as to Need for Oral Argument,"

THe Court has concluded that oral argument is not %

necessary, Accordingly, this case has been sub-

mitted for decision on the briefs and record,

I

The facts that underlie this apperl are some-

what complicated as they involve the progress of

appellent's section 1983 lawsuit in federal court es

well as three stete court lewsuits, Nevertheless,

the pertinent facts may be summarized es follows:

The pro se eppellent, himself an ettorney, was

et one time the beneficial owner of three spartment

buildings in Chicago, In 1973 and 1974 the appellee

City of Chicago, through its corporsetion counsel and

his assistants, brought three actions in the Cook

County Circuit Court against the seppellent, alleging ni

building code violations, In these proceedings the

eppellent sttempted to implead as parties defendant

certein of his tenants and two contractors, In sum,

the appellant averred that # number of his tenants

were delinquent in their rentals and were committing

acts of vandalism in his buildings making it difficult

eto satisfy the requirements of the building code, and

that the contractors hired to bring one of his buildings

into compliance with the code “performed in a poor unwork-

menlike manner", The motions were opposed by appellee

Assistent Corporation Counsel McCeffrey and were dented

. by appellee Judge Richard H. Jorzsk, The appellant

claims thet as » result of the deniel of his motions to

implead he was forced to sell two buildings at e@ loss

end thet he lost the third building in @ foreclosure sale.

The eppellent elso claims demages arising out of the

alleged ex parte judgment entered egeinst the appellant

in one of the state court suits by the appellee Judge Willie

M, Whiting on May 1, 1980, in the amount of $7,600 plus

costs, Appellee Assistant Corporation Counsel Jomes Murphy

opposed eppellent'’s motion to vecate the judgment and

eppellee Judge Whiting denied the motion. The appellees

deny thet the judgment wes ex parte, Brief of appellees

Jorzak end Whiting et 4, end while the record is opeque,

the judgment spparently @as later vacated,

The eppellees City of Chicago and Williem R. Quinlen

are sued solely in their respective cepecities es the

employer and supervisors of the appellees McCaffreyyand

Murphy,

In sum, the appellant contends that the appellees’

puttenh in opposing and denying his motions to implead

parties defendant in the circuit court actions and in

entering a judgment against him and opposing and denying

his motion tovacate the judgment violated his rights

under the Fourteenth Amendment to the United States

Constitution; the appellant does not specify whether the

actions violated his rights under the Due Process or

Equal Protection clauses of that amendment,

In addition to the relatively complex fact situation

set out above, a recitation of the procedural history

in the district court is also necessary in order to

evaluate the appellent’s arguments on appeal,

The appellant filed his first complaint in this

section 1983 action on June 3, 1980, On July 10, 1980,

the appellees judge Richard H, Jorzak and Judge Willie M,

Whiting (the Cook County appellees) filed a motion for

judgment on the pleadings, The appellent filed a second

amended complaint on August 27, 1980, The appellees

City of Chicago, William R, Quinlan, John W]iMcCaffrey

and James Murphy (the Chicago appellees) filed a motion

to strike and dismiss the second amended complaint on

‘

September 18, 1980, On December 5, 1980, the district court

court granted the Chicago appellees’ motion to dismiss

and treating the Cook County appellees’ motion for

judgment on the pleadings as a motion to cismiss

also granted that motion, In its memorandum opinion

and order the district court held that the individual

defendants were absolutely immune from liability under

$ 1983 and that the complaint had failed to state a

valid claim against the appellee City of Chicago because

it failed to allege that the city was acting pursuant

to an official policy of custom that caused the consti-

tutional violations, a requirement imposed by Monell V,

Department of Social Services of the City of New York,

436 U.S. 658 (1978). At the December 5 heering in

which the district court dismissed the compleint the

eppellant made an oral motion for reconsideration and

was given until February 6, 1981 to file # supporting

memorandum, Nevertheless, judgment was entered on

December 9, 1980, On January 28, 1981, notwithstanding

the court's permission to file a memorandum in support

of his oral motion for reconsideration, the appellant

moved to vacate the dismissal order and moved for

leave to file a third amended complaint, The district

-

‘court denied both motions on the ground that the défects

present in the second amended complaint were also present

in the third amended complaint, The matter of the re-

consideration of the second amended complaint was apparently

continued, and on February 26, 1981 the appellant filed a

memorandum in support of his December 5, 1980 oral motion

to reconsider, On May 28, 1981 the district court denied

appellant's motion for reconsideration, On June 26, 1981,

the appellant filed his notice of appeal to this court

from the district court's orders of December 5, 1980 Dis-

missing the complaint), January 28, 1981 (denying motion

to vacate and motion for leave to file third amended

complaint), and May 28, 1981 (denying motion to reconsider),

II

As @ preliminery matter, this Court lacks jurisdi-

ction to heer the eppeal of the district court's order of

January 28, 1981. denying the eppellant's motion to vacate

and motion for leave to file « third amended complaint,

Both motions are motions to alter or amend a judgment

under F,R,C.D, 59(e). 3 Moore's Federal Practice $15,07(2)

at 15-51 (2d Rev,Ed, 1982),

Such motion must be served not later than 10 days

after judgment, F,R.C,P, 59(e), Judgment was entered

by the district court on December 9, 1981, These

motions, filed forty days after entry of judgment,

are simply too late,

Even if we were to reach the merits of the appeal

of the January 28, 1981 order, the result would not be

the seme, With respect to the motion to file # third

amended complaint, under F,R,C.P, (15(#) a party is

entitled to only one amended pleading as a matter of

course, Subsequent amendments are permitted only by

leave of court or by written consent of the adverse

perty., The determination of appropriateness of addi-

tional amended pleadings is within the discretion of

the district court, Mertens v, Hummell, 587F 2d 862,

‘ 865 (7th Cir, 1978), citing Foman v, Davis, 371 U.S,178,

182 (1962) (dictum), cited in Zenith Radio Corp. v.

Hazeltine Research, Inc,, 401 U.S. 321, 330 (1971),

Fomen v, Davis states that leave to amend is inappro-

priate where there is “undue delay, . .. repeated

failure to cure deficiencies by amendments previously

allowed, . . . futility of amendment, etc," Fomaen v.

Davis, 371 U.S, at 182, The district court in this

e 8 oe

- case found that the proposed third amended complaint

failed to cure the feficiencies in the second emended

complaint dismissed on December 5, 1980, Granting

leave to amend would thereofre be futile and denial

of the motion for leave to amend was withingthe

district court’s discretion, This leaves for considera-

tion the appeal of the dismissai of appellant's second

amended complaint and the appeal of the denial of

appellant's motion for reconsideration of thet order,

We now examine in greater detail the dismissal order

in reference to each defendant named by the appellant in

his complaint, We turn first to the two state court

judges,

III

It is clear that a judge is immune from liability

under $ 1983 for judicial acts unless taken in the

clear absence of all jurisdiction, Stump v, Sparkmen,

435 U.S. 349, 355-56 (1978); Pierson v, Rey, 386 U.S. 547,

554 (1967), See Briscoe v, LaHue, 663 F,2d 713, 722

(7th Cir, 1981), cert, granted U.S. ___102 S, Ct,1708

(1982) (presiding judge at criminal trial immune from

liability in action alleging judge erroneously reinstated

charges ageinst eppellant after their dismissal);

*.

«Qe

. Skolnick v. Campbel1,454 F, 2d 531, 533 (7th Cir,1971);

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

(doctrine of judiciel immunity not abolished by $ 1983).

Even allegstions of malice are not sufficient to over-

come this grant of immunity, Stump v, Sparkman, supra,

435 U.S. at 370, (Powell, J,, dissenting). See United

States ex rel, Powell v. Irving, 684 F, 2d 494, 497 (7th

Cir, 1982), It is equally clear thet ruling on motions

and rendering judgments are Hudicieal acts, See Lopez v.

Vanderwater,620 F, 2d 1229, 1234 n, 6 (7th Cir,), cert.

dismissed, 449 U.S, 1028 (1980); Skolnick v, Campbell,

398 F, 2d 23, 25 (7th Cir. 1968),

In Stump v. Sparkman the Supreme Court noted that a

"judge will not be deprived of immunity because the action

he took was in error, was done maliciously, or wasiin

excess of his suthority; rather, he will be subject to

liability only when he hes acted in the ‘clear absence

of all jurisdiction,’" Stump, supra, 435 U.S, at 356-57,

quoting Bradley v. Fisher, 13 Wall, 335, 351 (1872), This

rule of judicial immunity has been followed in this Court,

Jacobson v. Scheefer, 441 F.2d 127, 129 (7th Cir, 1971);

Skolnick v, Campbell, 454 F,2d 531, 533 (7th Cir,1971);

Berg, v. Cwiklinski, 416 F,2d 929, 931 (7th Cir,1969),

- 10 -

* Because actions alleging building code violations are

within the general subject matter jurisdiction of

Illinois circuit courts, I11, Const, Art, 6 $ 9; ILI.

Rev. Stet, ch 37 $ 72.25 (1981), it is clear that

Judge Jorzak did not act in the “clear absence of all

jurisdiction" and therefore we affirm the district

court's order dismissing the complaint against Judge

Jorzak,

1 With respect to Judge Whiting, however, the appell-

ant asserts that his section 1983 claim survives a motion

to dismiss asserting judicial immunity because the

circuit court did not have personal jurisdiction over

him when Judge Whiting entered the judgment egainst hin,

For purposes of a motion to dismiss, these sllegaetions

must be accepted as true, Cruz. v. Beto, 405 U,S, 319,

322 (1972). In Rankin v, Howard, 633 F, 2d 844 (9th Cir,

1980), cert, denied sub nom, Zeller v, Renkin, 451 U,S,

939 (1981), the Ninth Circuit held thet a judge who

acts in the clear and complete absence of personel

jurisdiction loses his or her judiciel immunity, Id,at 849,

The Ninth Circuit closesly read the scope of the Stump

opinion and ruled that although Stump might have

implied that subject matter jurisdiction slone is

- ii -

” sufficient to confer immunity, the Supreme Court did

not so hold, because no specific challenge to personal

jurisdiction had been made in Stump. Rankin v, Howard,

supre, 633 F, 2d, at 848 n, 10, The Ninth Circuit express-

ly held, however, that it is not suffictent that the

court in fact lacks personal jurisdiction, Id, at 849,

Rather, immunity is lost only if the judge knows that

he or she lacks jurisdiction or the judge acts in the

face of a clearly valid statute or case lew expressly de-

priving the judge of jurisdiction, Id, Here, because

the appellant allegs neither that Judge Whiting acted

knowing that she lecked jurisdiction over the appellant

nor that any clearly valid statute or case lew expressly

deprived Judge Whiting of personal jurisdiction over him,

the district court’s dismissal of the complaint against

Judge Whiting must also be affirmed,

Iv

With respect to the sppellees McCaffrey and Murphy,

it is also well-settlid that in initiating and prosecut-

ing the State's case, a prosecutor is immune from a civil

suit for damages under $ 1983, Imbler v, Pachtman, 424 U,S,

409, 431 (1976). Brisoe v, LaHue, supra, 663 F.2d at 721-22,

e 12 «

Even where malice is alleged, a state prosecutor hes

quasi-judicial immunity so long as he is acting within

the scope of his prosecutorial discretion, Grow v, FISHER,

523 F. 2¢ 875, 877 (7th Cir, 1975), It fe spperent thet

opposing motions before the Circuit court is part of the

prosecutor’s function, See Heidelberg v. Hammer,577 F.2d

429, 439 (7th Cir, 1978) (allegations that prosecutors

improperly conducted the prosecution cannot succeed in

the face of the prosecutor's absolute immunity), With

respect to appellee Quinlan, the corporation counsel can

have no vicarious liability for the acts of his assistants

against which the assistants themselves are immunized,

Madison v, Gerstein, 440 F,2d 338, 340 (5th Cir, 1971),

and the appellent alleges no direct action on appellee's

Quinlen’s part, Mclaughlin v, City of LaGrange, 662 F,2d

1385, 1388 (11th Cir,1981}, Cert. denied, __ —-U,S. _ i,

102 S, Ct, 2249 (1982),

Apporently no court has considered the issue of

a municipality's liability under $ 1983 for the judicial

acts of its officers, Municipalities would be immune

from liability for judicial functions under the common

law of torts, Prosser, Law of Torts, $ 131, p. 986 (4th Ed,

1971). Although it would be in keeping with the policy of

reading $ 1983 in “harmony with generalsprinciples of

tort immunities," Imbler v, Pachtman,supra, 424 U.S at 418,

- 13 -

-~to extend a municipality's immunity for judiciel -

acts to claims filed under $ 1983, we agree with

the district court that this appellant hes simply

failed to state a claim upon which relief can be

granted, F,R,C,P, 12(b) (6). As the district court

noted, the appellent failed to allege that the city

was acting pursuant to an official policy or custom

which caused the constitutional violetion, In Monell Vv.

Department of Social Services of the City of New York,

436 U.S. 658 (1978), the Supreme Court held thet a

municipality is liable for demages under $ 1983 which

“may fairly be said to represent officiel policy,"

Id, at 694, Contrary to the eppellent's assertions,,

J

Monell was reaffirmed in Owen v. City of Independence,

Missouri, 445 U.S, 622, 657-58 (1960), The sppellant's

second amended complaint simply does not allege any

policy or custom of the City of Chicago which caused a

constitutional deprivation, Were we to consider the

appellent’s third amended complaint, it would be equally

deficient, since it merely makes a conclusory allegation

and does not contain the "highly specific factuall

averments" required to defeat a motion to dismiss in

i

«= MR «

Civil Rights Act cases, Littleton v, Berbling,

468 F, 2d 389, 394 (7th Cir, 1972), reversed in part

on other groungs, 414 U, S, 488 (1974),

VI

Lastly, because we cannot conclude thet the

district court's original dismissal order was improper,

we also conclude that the district court did not abuse

its discretion in denying appellant's motion to reconsider

the dismissel, 6A Moore’s Federal Practice PF 59,15 (14)

(2d Rev, Ed, 1982) (abuse of discretion standard applied

in reviewing denial of motion for reconsideration),

As a concluding note, we should point out that

any remedy available to the appellant would have been

through timely appeal of the circuit court's orders, not

a suit for damages under $ 1983, See Stump v. Sparkman,

supra, 435 U.S, at 369-70 (Powell J,, dissenting),

See also, United States ex rel. Powell v. Irving, 684

F, 2d 494, 497 (7th Cir, 19838) (alternative remedies

other than $ 1983 available to protect prisoners seek-

ing parole). Appellant elected to file this section 1983

lawsuit instead but his complaint contains no allegation

that survives a motion to dismiss, 1/ J

Therefore, that portion of the appeal that con-

cerns the district court's order of January 28, 1981 is

“| oe

-is hereby dismissed and the district court's orders

dismissing the eppellant’s second amended compleint

and denying the appellant's motion for reconsidera-

tion ere affirmed,

1/_ As to the appellant's cleim that no transcripts

of the circuit court proceedings were provided to him,

his complaint fails to allege thst he ever requested

such transcripts, In the Houstng Court, # party must

prepare a written order if he does not want to rely on

the half-sheet record prepared by the Clerk of the Céurt,

Brief of Defendants-Appellees Jorzak and Whiting at 3,

APPENDIX B - 24

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

January 13, 1983

’ Before

° Hon, HARLINGTON WOOD, JR., Circuit Judge

Hon, RICHARD D, CUDAHY, Circuit Judge.

Hon, JESSE ESCHBACH, Circuit Judge

BENJAMIN A, RASKY, ) Appeal from the United

States District Court

Plaintiff-Appellant ara agi lata

) District of Illinois,

Ho. 81-2046 ee, : Eastern Division,

No, 80 C 2821

CITY OF CHICAGO, et al., : »

Defendants -Appellees ) JOHN POWERS CROWLEY,

) Judge

ORDER

On consideretion of the petition for rehearing

filed in the above-entitled cause by plaintiff-appellant,

Benjamin A, Rasky, all of the judges on the original

penel having voted to deny the same,

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is hereby, DENIED,

— APPENDIX C -3A-

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BENJAMIN A, RASKY,

Plaintiff,

vs, NO, 80 C 2821

CITY OF CHICAGO, a Municipal

Corporation, WILLIAM R, QUINLAN,

individually and as Corporation

Counsel, JOHN W, McCAFFRY, JAMES

MURPHY, WILLIAM BANKS, all indi-

vidually and as Assistants Corpo-

ration Counsel, the Hon, RICHARD H,)

JORZAK, and the Hon, WILLIE M, )

WHITING, respectively, individually)

and as Judges of the Circuit Court )

of Cook County, Illinois,

-—

li i ed de dann

i ed

Defendants,

, MEMORANDUM OPINON AND ORDER

John Powers Crowly, District Judge

Benjamin A, Rasky brought this $1983 action

ageinst the City of Chicago (City) various attorneys from

. the office of the Corporation Counsel and two judges

of the Circuit Court of Cook County (Circuit Court)

seeking compensatory and punitive damages, Jurisi-

Giction is asserted pursuant to 28 U.S.C. $1343. RASKY

alleges that defendants, #s prosecutors and presiding

judges, acted improperly during various cases brought

ageinst RASKY in the Circuit Court for building code

violations, These actions, RASKY contends, caused him

or wa

to lose three apartment buildings. Currently before the

Court are the motions of the City of Chicago (City) defe-

ndants for judgment on the pleadings. °

Rasky states that when the City brought actions

against him for operating apartment buildings in violation

of Chicago's Building Code, he attempted to implead tenants

living in the buildings and contractors hired to repair the

buildings, claiming that these parties were responsible for

the unsafe and unsanitary conditions which were the basis

of the actions, The City opposed the motions which were

eventually denied, Rasky alleges that because his motions

were not granted, he was unable to Operate his buildings

economically and, as a result, was forced to sell two of

the buildings at a loss and lose the third through mortgege

foreclosure, Rasky also alleges that, despite the fact ‘

that he fully discharged a11 fines and claims with respect

to these three buildings and retains no legal or equitable

interest in them, defendants continue to maintain actions

against him in connection with these buildings,

In support of its motion to dismiss, the City defend-

ants raise several arguments, First, they contend that their

actions did not deprive Rasky of any right secured by the

Constitution or federal law, Second, they allege that

a seers “Hae aa

Assistant Corporation Counsel, as Prosecuting attorneys,

enjoy absolute immunity because they were acting within the

scope of their official duty, Next, the City defendants claim

thet there is no allegation of direct action by the City or

* William Quinlan, the Corporation Counsel, and maintain that,

under Monell v, New York City Department of Social Services,

° Se

436 U.S. 658 (1978), there is no liebility for the actions of

subordinates under the theory of Tespondent superior, Similarly,

the Cook County defendants allege that the Stete judges have

absolute immunity for judicial acts in cases over which they

have subject matter jurisdiction,

: This Court has serious doubts as to whether the complaint

alleges facts sufficient to Support a claim under $1983, How-

ever, it is unnecessary to address the adequacy of the allega-

tions because under the circumstances here, defendants are

dnsulated from damage liebility, There can be no dispute that

“absolute immunity protects judges from liability for judicial

ete, Dennis vy, Sparks, 49 U.S.L.w. 3172 (U.S. Nov. 18, 1980)

(No, 79-1186); Bradley v, Fisher, 17 Wall 335 (1872) and that

jucicial acts ere those acts normally performed by judges which

relate to the judicial process and are subject to appeal,

Stump v. Sparkman, 435 U.S. 349 (1978), Rasky complains that

the judges improperly denied his motions and refused to enter

*ppropriete orders, These are ects committed within the scope

s

’

« 4 «

of judicial discretion, Thus, even if Rasky's allegations

that the judges acted with flawed judgment or committed

procedural errors in the exercise of their authority are

true, there can be no damage liability under $1983. Stump v,

Sparkman, 435 U.S. 349 (1978).

Immunity from civil liability extends also to pros- -

ecutors, Imbler v, Pachtman, 424 U.S, 409 (1976), Attorneys

enjoy official immunity when pursuing 2 prosecution and

presenting the case in court, Daniels v. Kieser, 586 F, 2d 64

(7th Cir.), cert, denied 441 U.S. 931 (1978); McDonald v.

State of Illinois, 557 F. 2d 586 (7th Cir.), cert, denied 434

U.S. 966 (1977), Further, the supervising attorney is not

vicariously liable for immunized acts of his assistants, See

Madison v, Gerstein, 440 F, 2d 338 (Sth cir, 1971). Rasky's

allegations concerning the acts of Assistant Corporation

Counsel relate solely to initiating and conducting judicial ,

proceedings; the complaint does not allege any direct action

on the part of the Corporation Counsel. Since the assistants

were functioning within the scope of their official duty and

the corporation counsel did not actively paaticipate in the

litigation, the Corporation Counsel and his assistants are

protected by the doctrine of ebsolute immunity,

The last issue is whether the City of Chicago is a proper

defendant, Rasky argues that under Owen v. City of Independence,

Missouri,100 S, Ct, 1398 (1980) the City of Chic»go is not

OO ———————“—=i—O

- 5 7

immune from liability under $1983, Plaintiff ignores

the fact, however, that a valid claim against the City

must be supported by an allegation that the City was

acting pursuant to an official policy or custom which

caused the constitutional deprivation; the City cannot

* be liable on the basis of respondeat superior, Monell v,

Department of Social Services of the City of New York, 436

U.S. 658 (1978). The complaint contains no such allega-

tions of an official policy or custom,

Accordingly, the complaint fails to state a claim

upon which relief can be granted, The motion of the City

defendants to dismiss is granted, Treating the motion of

Cook County defendants for judgment on the pleadings as

a motion to dismiss, this motion is also granted.

° John Powers Crowly

United States District Judge

DATED: December 5, 1980,

The complaint fails to state a claim upon which relief

can be granted. The motion of the City defendants to dismiss

is granted, Treating the motion of the Cook County defendants

é 6%

for judgment on the pleadings as a motion to dismiss,

this motion is also granted, (DRAFT)

Plaintiff given to February 6, 1931 to file memorandum in

a support of oral motion to reconsider,

APPENDIX D 4A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Presiding Judge, Honorable JOHN POWERS CROWLEY

Cause No, 80 C 2821 January 27, 1981

Title of Cause: BENJAMIN A.RASKY vs, CITY OF CHICAGO

Motion of Plaintiff to vacate Order of

December 5, 1980 dismissing Plaintiff's Complaint

and for Leeve to File Third Amended Complaint at

Law Instanter

BENJAMIN A, RASKY, Pro Se, 5104 W, Weber Lane,

Skokie, Illinois 60077

Representing Plaintiff

RICHARD M, DALEY, State's Attorney Cook County by

MICHAEL BACCASH, Asst., Room 500 Richard J, Daley

Center, Chicago 60602, representing Judges RICHARD H,

JORZAK and WILLIE WHITING, WILLIAM R, QUINLAN, Corpo-

ration Counsel of the City of Chicago by Assistant

DANIEL C, WELTER, Room 511 City of Chicago, 60602,

Representing City of Chicago, WILLIAM R, QUINLAN, Corp.

Counsel, JOHN W, McCaffrey and JAMES MURPHY, Assistants

@>rporation Counsel,

Hearing on plaintiff's motion to vacate the order of

December 5, 1980, held, For the reasons stated in open

Court, plaintiff's motions to vacate the Order of

December 5, 1980 and for leave to file a Third Amended

Complaint are denied,

a t—

APPENDIX D - 4B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF LLLINOIS

EASTERN DIVISION e

Presiding Judge, Honorable JOHN POWERS CROWLEY

Cause No. 80 C 2821 May 28, 1981

Title of Cause: Benjamin A. Rasky vs.

City of Chicago

Plaintiff's Motion For Reconsideration

is Denied.

_ NO. ‘

IN THE SUPREME COURT OF THE UNITED STATES

BENJAMIN A. RASKY, Petitioner,

Plaintiff-Appellant,

peek

CITY OF CHICAGO, a Municipal

Corporation, et al., Respondents

Defendants-Appellees.

ee ee ee ee ee ee

NOTICE OF FILING PETITION FOR

WRIT OF CERTIOPARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

TO: Stanley J. Garber, Corporation Counsel

of the City of Chica_o, City Hall,

Chica.o, Illinois 60602

Richard M. Daley, State's Attorney of.

Cook County, Daley Civic Center,

Chicazo, Illinois 60602, Attorneys

for Defendants

YOU ARE HEREBY NOTIFIED that on

April7 » 1983, I filed a Petition for Writ

of Certiorari to tine United States Circuit

Court of Appeals for the Seventh Circuit,

Chicago.

DATED: April/ , ab

hip

West Weber

le, act