In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2884
ESTATE OF THETIS M. SIMS, by and through its
personal representative, Melissa K. Sims,
WILLIAM C. SIMS, surviving spouse and next of kin,
and MELISSA K. SIMS, individually,
Plaintiffs-Appellants,
v.
COUNTY OF BUREAU, as a necessary party in interest,
GREG JOHNSON, JOHN E. THOMPSON, in his official
capacity as Sheriff of the County of Bureau and
BUREAU COUNTY SHERIFF ’S DEPARTMENT,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00 C 1065—Joe Billy McDade, Judge.
____________
ARGUED FEBRUARY 26, 2003—DECIDED OCTOBER 19, 20071
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
KANNE, Circuit Judges.
KANNE, Circuit Judge. In 1999 Thetis M. Sims suffered
a fatal heart attack in her home in Tiskilwa, Illinois. The
1
The decision in this case was withheld pending lengthy
settlement proceedings in the Illinois State Courts.
2 No. 01-2884
only person present at the time was Bureau County
Sheriff Greg Johnson, whose alleged campaign fraud was
the subject of a story Ms. Sims was investigating for the
local newspaper. Her estate, her husband, and her daugh-
ter brought a federal civil rights suit against Johnson in
his individual and official capacities,2 Bureau County, and
the Bureau County Sheriff ’s Department, alleging that
Johnson’s actions led to Sims’s death. The district court
granted the defendants’ motions to dismiss for failure to
state a claim upon which relief can be granted pursuant
to Fed. R. Civ. P. 12(b)(6), and the plaintiffs appeal.
Following oral argument in the appeal, the plaintiffs
informed us that they had settled their claims against
Johnson, but that the remaining defendants were chal-
lenging the settlement agreement in Illinois state court.
We suspended our proceedings until the Illinois courts
could resolve the dispute. In accordance with the state
court decisions, we dismiss Johnson in his individual
capacity. The plaintiffs have failed to establish their
claims against the remaining defendants. Accordingly,
we affirm the dismissal of the complaint.
I. BACKGROUND
Because the district court dismissed the complaint
pursuant to Rule 12(b)(6), we assume all well-pleaded
allegations in the complaint are true and draw all reason-
able inferences in the plaintiffs’ favor. Christensen v.
County of Boone, Illinois, 483 F.3d 454, 457 (7th Cir. 2007)
(per curiam); Holman v. Indiana, 211 F.3d 399, 402 (7th
Cir. 2000). See also Bell Atlantic Corp. v. Twombly, 127
2
In accordance with Fed. R. App. P. 43(c)(2), we grant the
plaintiffs’ unopposed motion to substitute the current Sheriff
of Bureau County, John E. Thompson, for Johnson in his offi-
cial capacity.
No. 01-2884 3
S. Ct. 1955, 1965 (2007). Prior to her death, Sims, a part-
time newspaper reporter for the Kewanee Star Courier,
was conducting an investigation into allegations that
Sheriff Johnson engaged in campaign fraud in his elec-
tion campaign and misused county funds. She had ex-
pressed concern to others that Johnson might retaliate
against her for writing the story. On the day of her death,
in an effort to intimidate Sims from writing the newspaper
article about Johnson’s misconduct, Johnson deposited
for bulk mailing to the residents of the Simses’ hometown
a letter falsely accusing Sims’s husband, William, of past
and current felonious criminal conduct. Johnson then
telephoned Sims, asked to speak with her, and drove to
her home in Tiskilwa. Upon arrival, he showed the defam-
atory letter to Sims and questioned her regarding the
accusations of criminal conduct by her husband. According
to the allegations of the complaint, Johnson knew of
Sims’s heart condition, and knew or had reason to believe
that reading a letter containing such extreme, outrageous
accusations about her husband would cause her great
emotional distress and would increase the likelihood that
she would suffer a fatal heart attack.
At approximately 12:30 p.m., Sims did suffer a fatal
heart attack. Johnson radioed for an ambulance at 12:47
p.m., but by the time the paramedics arrived at 12:54 p.m.,
Sims was not breathing and did not have a pulse. One of
the paramedics described her as “cold” when he arrived.
The plaintiffs’ expert in emergency medicine averred that
Sims died of cardiac arrhythmia provoked by extreme
anger or fear and that she could have survived if she had
been given CPR immediately. Johnson told the para-
medics that he did not complete CPR because his rubber
gloves kept breaking. Before calling the ambulance,
Johnson used Sims’s telephone to call the Princeton Post
Office and ask a postal worker about the criminal penal-
ties for sending defamatory letters and whether the bulk-
4 No. 01-2884
rate mailing of the defamatory letter could be traced.
Sims’s daughter found the telephone off the hook and out
of her mother’s reach. Following her death, Johnson
dropped his own investigation regarding the defamatory
letter. He also failed to investigate Sims’s death and
refused to cooperate with the police officers seeking to
investigate her death.
Both Johnson, in his individual capacity, and the County
defendants—Bureau County, the Bureau County Sheriff ’s
Department and the Sheriff in his official capacity—filed
motions to dismiss for failure to state a claim upon which
relief can be granted. Magistrate Judge Evans recom-
mended, in part, that the district court dismiss the
following parties and claims: (1) the County of Bureau as
a real party in interest; (2) the First, Fourth, Fifth, Eighth,
and Ninth Amendment claims in Counts IX and X; (3) the
prayer for punitive damages in Counts IX, X, and XI, and
(4) Counts XIV, XV, XVI, and XVII against the Sheriff
in his official capacity. Neither side filed objections as
to these recommendations; therefore, the district court
adopted these portions of the Report and Recommendation.
The district court, however, rejected the portions of the
Report and Recommendation that the Bureau County
Sheriff ’s Department be retained as a party, that the
substantive due process violation claims in Counts IX and
X be allowed, that the conspiracy claims in Count XI be
allowed, and that the supplemental state law claims
be allowed. The district court accordingly granted the
defendants’ motions to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) in their entirety, and dismissed the federal
claims with prejudice and the state claims without preju-
dice.
II. DISCUSSION
The plaintiffs appealed from the disposition of the
motion to dismiss the individual capacity claims against
No. 01-2884 5
Johnson and the motion to dismiss the claims against
Bureau County, the Bureau County Sheriff ’s Department
and the Sheriff in his official capacity. However, after oral
argument was heard in this appeal, the plaintiffs entered
into a settlement agreement with Johnson. Although the
plaintiffs and Johnson settled only the claims against
Johnson, the plaintiffs further agreed to dismiss their
appeal and to limit their right to collect the settlement
solely from Bureau County and its insurers. When they
notified this court of the settlement agreement, the
plaintiffs informed the court that Bureau County under-
standably was already challenging the settlement agree-
ment in the state court case and asked the court to stay
its proceedings pending resolution of the enforceability
of the action in state court, which we did. The Illinois
Appellate Court held that the settlement agreement was
enforceable with respect to Johnson in his individual
capacity, but not enforceable with respect to the Sheriff ’s
Office or the County. Sims v. Johnson, No. 3-05-0416 (Ill.
App. 3 Dist. July 27, 2006). State law governs a suit to
enforce a settlement of a federal suit. Dillard v. Starcon
Int’l, Inc., 483 F.3d 502, 506-07 (7th Cir. 2007); Lynch, Inc.
v. SamataMason Inc., 279 F.3d 487, 490 (7th Cir. 2002). At
the time he entered into the settlement agreement,
Johnson had resigned as Sheriff of Bureau County and
was not empowered to act on behalf of the Sheriff ’s Office.
Cf. Carver v. Sheriff of LaSalle County, 787 N.E.2d 127
(Ill. 2003) (holding that an acting sheriff is authorized
under the Illinois Tort Immunity Act to enter into settle-
ment agreements that bind the county for the acts of the
sheriff in his official capacity). Accordingly, we grant the
plaintiffs’ motion to dismiss Johnson only in his individual
capacity. We reject Johnson’s argument that the cur-
rent Sheriff in his official capacity also be dismissed
based on the settlement agreement.
6 No. 01-2884
We review de novo whether the complaint states a claim
upon which relief can be granted. Christensen, 483 F.3d
at 458. Federal Rule of Civil Procedure 8(a)(2) requires
only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” The statement need
only “ ‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’ ” Bell Atlantic, 127
S. Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). See also Erickson v. Pardus, 127 S. Ct. 2197, 2200
(2007). In order to state a claim pursuant 42 U.S.C. § 1983,
the plaintiffs must allege that a government official, acting
under color of state law, deprived them of a right secured
by the Constitution or laws of the United States.
Christensen, 483 F.3d at 459. In a civil rights case alleging
municipal liability, a federal court may not apply a
heightened pleading standard more stringent than the
usual Rule 8(a) pleading requirements. Leatherman v.
Tarrant County Narcotics Intelligence and Coordination
Unit, 507 U.S. 163, 165 (1993).
Now that the individual capacity claims against Johnson
have been settled, only three defendants remain—John E.
Thompson, in his official capacity as Sheriff, the Sheriff ’s
Department, and Bureau County. The liability of the
Sheriff ’s Department and of the County is derivative of
Thompson’s official-capacity liability, and the official-
capacity liability is subject to holding in Monell v. Depart-
ment of Soc. Servs., 436 U.S. 658, 694 (1978), that “a
local government may not be sued under § 1983 for an
injury inflicted solely by its employees or agents.”
In order to state a § 1983 claim against a municipality,
the complaint must allege that an official policy or
custom not only caused the constitutional violation, but
was “the moving force” behind it. City of Canton, Ohio v.
Harris, 489 U.S. 378, 389 (1989). See also Arlotta v.
Bradley Center, 349 F.3d 517, 521-22 (7th Cir. 2003); Gable
No. 01-2884 7
v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002).
Unless there is an unconstitutional policy, there cannot
be official-capacity liability; only individual-capacity
liability is possible. The “official policy” requirement for
liability under § 1983 is to “distinguish acts of the munici-
pality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to
action for which the municipality is actually responsible.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).
“Misbehaving employees are responsible for their own
conduct[;] ‘units of local government are responsible only
for their policies rather than misconduct by their work-
ers.’ ” Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir.
2007) (quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th
Cir. 2007)). A plaintiff may demonstrate an official policy
through: (1) an express policy that causes a constitu-
tional deprivation when enforced; (2) a widespread prac-
tice that is so permanent and well-settled that it consti-
tutes a custom or practice; or (3) an allegation that the
constitutional injury was caused by a person with final
policymaking authority. Lewis, 496 F.3d at 656.
The first question, therefore, is whether the complaint
alleges a direct causal link between a policy or custom of
the Sheriff ’s Department and the alleged constitutional
violations. City of Canton, 489 U.S. at 385. The complaint
alleges that the Sheriff ’s Department had no policy or
custom at the time of Sims’s death for handling emergency
medical situations and no protocol or policy manual
regarding CPR certification or training. The remaining
allegations, however, make clear that the events about
which the plaintiffs complain are well beyond a failure to
rescue Sims or provide emergency medical services. The
complaint contends that Johnson murdered Sims by
inducing a heart attack. The plaintiffs do not contend that
the Sheriff ’s Department had a policy of frightening
8 No. 01-2884
reporters to death, or even of failing to rescue journalists
who write critical articles. The plaintiffs have not alleged
that such an express policy exists, nor is it possible to infer
there is such a policy at work. In cases asserting an
implicit policy or a gap in express policy, “what is needed
is evidence that there is a true municipal policy at issue,
not a random event.” Phelan v. Cook County, 463 F.3d 773,
790 (7th Cir. 2006) (quoting Calhoun v. Ramsey, 408
F.3d 375, 380 (7th Cir. 2005)). Nor have the plaintiffs
asserted that Johnson held final policymaking authority
with respect such policies. Killinger v. Johnson, 389 F.3d
765, 771-72 (7th Cir. 2004). The official in question must
be the final policymaker in the particular area or on the
particular issue raised in the case. Kujawski v. Bd. of
Comm’rs of Bartholomew, Ind., 183 F.3d 734, 738 (7th Cir.
1999) (quoting McMillian v. Monroe County, 520 U.S. 781,
785 (1997)).
Although the plaintiffs baldly assert on appeal that
Johnson’s actions were “the outrageously reckless, proba-
bly criminal, activity of a state actor under of color of his
state office,” the allegations of the complaint do not show
that Johnson’s conduct was related to the performance
of his official duties. Not every action taken by a state
official is considered to have occurred under color of state
law. Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001)
(quoting Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir.
1989)). An action is taken “under color of state law” if it
involves a “[m]isuse of power, possessed by virtue of state
law and made possible only because the wrongdoer is
clothed with the authority of state law.” National Colle-
giate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326
(1941)). Whether a particular action was under color of
state law depends “largely on the nature of the specific
acts the police officer performed, rather than on merely
whether he was actively assigned at the moment to the
No. 01-2884 9
performance of police duties.” Pickrel v. City of Springfield,
Illinois, 45 F.3d 1115, 1118 (7th Cir. 1995). See also
Martinez v. Colon, 54 F.3d 980, 986-87 (1st Cir. 1995). The
allegations of the complaint, even viewed in the light
most favorable to the plaintiffs, show that Johnson was
off on a frolic, trying to protect a personal interest.
In an attempt to show his actions were part of an official
investigation, the plaintiffs argue that Johnson went to
Sims’s house to investigate the defamatory letter regard-
ing her husband, but the complaint recognizes that
Johnson knew the statements in the letter were false and
that he immediately dropped the “apparent investiga-
tion” into the letter after Sims’s death. Similarly, the
allegations do not support the plaintiffs’ argument that
Johnson was able to gain entry into the Sims’s house only
because of his position as Sheriff. See West v. Atkins, 487
U.S. 42, 49 (1988). According to the complaint, Sims
was investigating Johnson’s campaign misconduct, she
asked to speak with him numerous times, he left a mes-
sage on her answering machine, and she returned the
call to arrange his visit to the house. These are not actions
of a state actor performed under color of state law but
are the private actions of a person who happened to be a
county officer. His actions were in furtherance of his
personal interests, even if he performed them while on
duty. Pickrel, 45 F.3d at 1118.
In light of our conclusion that the complaint failed to
state an official capacity claim, we only briefly address the
plaintiffs’ remaining arguments. Plaintiffs argue that
neither the magistrate judge nor the district court ad-
dressed their claim that Johnson’s actions deprived Sims
of her First Amendment right to freedom of the press. This
argument overlooks the magistrate judge’s finding that
the plaintiffs failed to make any factual or other re-
quired allegations in connection with their First, Fourth,
Fifth, Eighth, and Ninth Amendment claims and the
10 No. 01-2884
judge’s corresponding conclusion that these claims should
be stricken pursuant to Fed. R. Civ. P. 8(a)(2). Indeed, the
complaint does nothing more than list the rights guaran-
teed under the First, Fourth, Fifth, Eighth, Ninth, and
Fourteenth Amendments and baldly assert that the
defendants violated these rights. Plaintiffs failed to
object to the magistrate judge’s recommendation that
these claims be stricken, and accordingly waived their
right to challenge the dismissal of the First Amendment
claim on appeal. See 28 U.S.C. § 636(b)(1); United States
v. Sachsenmaier, 491 F.3d 680, 683 (7th Cir. 2007); Egert
v. Connecticut General Life Ins. Co., 900 F.2d 1032, 1039
(7th Cir. 1990).
Plaintiffs also challenge the district court’s dismissal of
their claim under 42 U.S.C. § 1985 for denial of their right
of access to the courts. They alleged that Johnson and
“possibly other persons employed by the Bureau County
Sheriff ’s Department” denied them a fair opportunity
to vindicate Sims’s death through judicial redress by
intentionally covering up the circumstances of her death
and refusing to cooperate with police officers seeking to
investigate the death. The plaintiffs’ complaint fails to
state a claim of conspiracy to deprive their right of
access to the courts because there are no allegations that
Johnson conspired with another person to conceal informa-
tion or otherwise hamper the investigation into Sims’s
death. See 42 U.S.C. § 1985(2); Wright v. Illinois Dept. of
Children & Family Services, 40 F.3d 1492, 1507 (7th Cir.
1994). Even under notice pleading, a complaint must
indicate the parties, the general purpose, and approximate
date of the agreement to form a conspiracy so that the
defendant has notice of the charges against him. Walker v.
Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). The
plaintiffs’ reliance on Bell v. City of Milwaukee, 746 F.2d
1205, 1261 (7th Cir. 1984), overruled on other grounds by
Russ v. Watts, 414 F.3d 783 (7th Cir. 2005); and Ryland v.
No. 01-2884 11
Shapiro, 708 F.2d 967, 972 (5th Cir. 1983), is misplaced
and ignores an important factor in Bell and Ryland—that
several defendants conspired together to cover up the
deaths. Here, the allegations suggest that Johnson acted
alone, and the district court properly concluded that
such allegations are insufficient to state a conspiracy
claim.
We note that after the district court dismissed Bureau
County and entered its judgment, we affirmatively held
that “a county in Illinois is a necessary party in any suit
seeking damages from an independently elected county
officer (sheriff, assessor, clerk of court, and so on) in an
official capacity.” Carver v. Sheriff of LaSalle County,
Illinois, 324 F.3d 947, 948 (7th Cir. 2003). In light of our
decision in Carver, we agree with the plaintiffs that
Bureau County would have been a necessary party to the
case if the complaint had stated a claim against the
Sheriff in his official capacity.
Finally, we must resolve several other matters that
have arisen in the course of the appeal. The County
defendants seek sanctions against plaintiffs’ counsel for
revealing discussions that were had in the course of
participating in proceedings with this court’s Settlement
Conference Office. Of course, settlement negotiations are
confidential for most purposes, In re Young, 253 F.3d 926
(7th Cir. 2001), and counsel should never reveal such
conversations in an attempt to gain a strategic advantage.
But it is not clear in this case that counsel engaged in
sanctionable conduct with regard to the settlement
proceedings, and we deny the appellees’ motion for sanc-
tions.
We also deny the motion to strike certain factual state-
ments in the plaintiffs’ brief. In reviewing the propriety
of the dismissal of the plaintiffs’ complaint, we have
confined our review to the allegations, liberally construed,
as set forth in the plaintiffs’ complaint.
12 No. 01-2884
III. CONCLUSION
Because the complaint does not allege a direct, causal
link between Sims’s death and a policy or custom of the
Sheriff and the Sheriff ’s Department, only individual
capacity liability would be possible. The plaintiffs’ settle-
ment with appellee Greg Johnson in his individual capac-
ity therefore resolves everything, and we affirm the
dismissal of the complaint.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-07