In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2904
C HRISTOPHER W ILSON, et al.,
Plaintiffs-Appellants,
v.
K EITH P RICE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 7199—William J. Hibbler, Judge.
A RGUED F EBRUARY 10, 2010—D ECIDED O CTOBER 4, 2010
Before R IPPLE, M ANION, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Keith Price, a Harvey, Illinois
alderman who had received several complaints about
cars parked illegally in front of Midnight Auto Express,
decided to take matters into his own hands. He drove
to the repair shop, demanded that the cars be moved,
and after an employee refused his orders, savagely beat
the employee until he was unconscious. The question
before the court is whether this conduct gives rise to
2 No. 09-2904
a federal claim under 42 U.S.C. § 1983. Although the
alderman’s actions were reprehensible, we find that they
were not made under color of state law and, therefore,
cannot serve as the basis for § 1983 liability. As a result,
we affirm the district court’s dismissal of the plaintiffs’
complaint.
I. BACKGROUND
Price was at all times relevant to this case an
alderman for the Sixth Ward of the City of Harvey (“the
City”). On May 2, 2008, Price received a number of
phone calls from his constituents complaining about
cars parked illegally on the parkway in front of Midnight
Auto Express (“Midnight Auto”), a car repair shop
located within the Sixth Ward. That evening, Price at-
tempted to call the City about removing the cars, but
did not get a response. Price then decided to go to Mid-
night Auto himself. When he arrived, he spoke with
Christopher Wilson, a mechanic at the shop, and de-
manded that Wilson move the cars. Wilson refused.
Price then demanded that Wilson summon the owner
of Midnight Auto. Wilson told Price to find the owner
himself and then turned to walk away. Furious, Price
punched Wilson in the head several times, leaving
Wilson unconscious and with a fractured jaw.
Wilson and his wife, Camilia Booker, sued Price and the
City of Harvey for damages. In their first amended com-
plaint, the plaintiffs asserted claims under 42 U.S.C.
§§ 1983 and 1985 against Price (Count I) and the City
(Count II), as well as state law claims for loss of consortium
No. 09-2904 3
(Count III) and battery (Count IV). They also raised
an indemnification claim against the City pursuant to
745 Ill. Comp. Stat. § 10/9-102 (Count V). Price and
the City moved to dismiss all counts pursuant to
Rule 12(b)(6), arguing that Wilson failed to state a
claim against them under § 1983 and that the court
should not exercise supplemental jurisdiction over the
remaining state law claims. The district court found
that Wilson had pleaded facts demonstrating that Price
had not acted under color of state law and accordingly
dismissed the § 1983 claim with prejudice. The district
court also declined to exercise jurisdiction over the state
law claims and dismissed them without prejudice. The
plaintiffs appeal the dismissal.
II. ANALYSIS
We review de novo a district court’s decision to grant
a motion to dismiss under Rule 12(b)(6). McCready v. eBay,
Inc., 453 F.3d 882, 888 (7th Cir. 2006). “We construe the
complaint in the light most favorable to the plaintiff,
taking as true all well-pleaded factual allegations and
making all possible inferences from those allegations in
his or her favor.” 1 Id. (citation omitted). The complaint’s
1
The plaintiffs make repeated reference to the criminal case
against Price, in which an Illinois state court found Price
guilty of battery after a bench trial. See People v. Price, No. 08
MC6 011003-01. The plaintiffs attempt to draw our attention to
excerpts from the trial transcript, but the plaintiffs never
(continued...)
4 No. 09-2904
“allegations must plausibly suggest that the plaintiff has
a right to relief, raising that possibility above a ‘specula-
tive level’; if they do not, the plaintiff pleads itself out of
court.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th
Cir. 2008) (citation omitted). Dismissal is proper if “it
appears beyond doubt that the plaintiff cannot prove
any facts that would support his claim for relief.” Kennedy
v. Nat’l Juvenile Det. Ass’n, 187 F.3d 690, 694 (7th Cir. 1999).
The central question on appeal is whether the plain-
tiffs have alleged facts sufficient to establish that Price
was acting under color of state law during the May 2,
2008 altercation outside Midnight Auto. To be liable
under 42 U.S.C. § 1983, Price must have acted “under
color of state law” to deprive Wilson of some federally
guaranteed right. Pickrel v. City of Springfield, Ill., 45
F.3d 1115, 1118 (7th Cir. 1989). “Not every action by a
state official or employee is to be deemed as occurring
‘under color’ of state law,” Hughes v. Meyer, 880 F.2d 967,
971 (7th Cir. 1995); rather, action is taken under color
of state law “when it involves a misuse of power, pos-
sessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of
state law,” Honaker v. Smith, 256 F.3d 477, 484-85 (7th
Cir. 2001). The mere assertion that one is a state officer
(...continued)
referenced the excerpts in the complaint, nor did they attach
them to the complaint. Because the excerpts are outside the
pleading, they are stricken from the appeal. McCready, 453
F.3d at 891. Therefore, we only consider those allegations
made within the four corners of the complaint.
No. 09-2904 5
does not necessarily mean that one acts under color of
state law. Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir.
1976). A state officer’s conduct does not constitute
acting under color of state law unless it is “related in
some way to the performance of the duties of the state
office.” Honaker, 256 F.3d at 485.
The plaintiffs contend that Price was acting under
color of state law when he attacked Wilson because
Price was “performing his civic duties as 6 th Ward Alder-
man for the City” when he went to Midnight Auto in
an effort to have the illegally parked cars moved. Yet, the
plaintiffs fail to articulate which of Price’s actions at
Midnight Auto relate to his aldermanic duties. Under
the Illinois Municipal Code, aldermen are elected mem-
bers of the municipality’s city council, and in that
capacity serve a “purely legislative” function. See 65 Ill.
Comp. Stat. § 5/6-4-6 (“The powers of the council
shall be purely legislative, except as may be otherwise
specifically provided by any other act or by any article
of this Code.”); see also United States v. Brewster, 408
U.S. 501, 512 (1972) (“A legislative act has consistently
been defined as an act generally done in Congress in
relation to the business before it.”). No other statutory
provision expands the powers of an alderman. See
generally 65 Ill. Comp. Stat. §§ 5/6-4-2 to 6-4-8.
Even drawing all reasonable inferences in Wilson’s
favor, the complaint’s allegations do not demonstrate
that any aspect of Price’s conduct on May 2, 2008 related
to his legislative duties, which include both the
statutorily authorized enactment of legislation and the
6 No. 09-2904
activities “related in some way” to the performance of the
legislative function. Honaker, 256 F.3d at 485. At oral argu-
ment, defense counsel conceded that an alderman may
be acting under color of state law when he performs
actions within the powers granted to him or that
he practices under common law, including legislative
investigation. Under that framework, we find that
Price was well within his aldermanic authority when
he initially called the City to request that another depart-
ment move the cars about which Price’s constituents
had complained. Further, because we understand his
role as legislator to entitle him to perform the secondary
activities necessary for the fulfillment of that function,
we also find that Price would have been entitled to go
to Midnight Auto for the purpose of investigation
(i.e., getting the vehicle tag numbers, inquiring about
why the cars are parked there), and perhaps this was
Price’s initial intent. But, even assuming that he was
at Midnight Auto in a capacity legitimately related to
his role as legislator, it is indisputable that Price
crossed that line and entered the realm of law enforce-
ment—which is wholly unrelated to the duties of a legis-
lator—the moment he demanded that Wilson move
the cars. The plaintiffs concede as much in their brief,
stating that Price “was stepping in the shoes for the
Harvey Police [when he] proceeded to attempt to enforce
certain City of Harvey parking requirements.” Price’s
presence at Midnight Auto may have been related to
his aldermanic duties in that he was responding to constit-
uent complaints, but even Price does not dispute that
his authority to act was limited to enacting legislation in
No. 09-2904 7
response to those complaints. It is clear that taking
such executive action was outside the scope of Price’s
aldermanic grant of authority.
That Price’s conduct was not connected to his legisla-
tive duties or related activities distinguishes this case
from cases like Cole v. City of Chicago, No. 06 C 4704, 2008
WL 68687 (N.D. Ill. Jan. 4, 2008), on which the plaintiffs
heavily rely. In Cole, the plaintiff brought a § 1983 claim
against the city and several paramedics in part based
on the allegation that one paramedic had physically
assaulted the plaintiff while removing him from an am-
bulance. The court explained that “[m]oving patients in
and out of ambulances is something that paramedics do
in the course of their regular duties,” which the court found
was “enough to support Cole’s argument that Ward was
acting under color of state law during Cole’s removal
from the ambulance, as an allegedly improper use of
force occurred while Ward was performing his official
duties.” Id. at *4 (emphasis added). Unlike the para-
medic’s duty to remove patients from ambulances, how-
ever, Price’s demand that Wilson remove the cars
illegally parked in front of Midnight Auto (and, obviously,
his use of force against Wilson when Wilson refused)
does not constitute part of an alderman’s regular duties
whether those duties are legislative or otherwise neces-
sary for legislation. As such, it is not a basis on which
we can find Price to be acting under color of state law.
Because Price had no enforcement authority, none of the
actions taken to compel Wilson to move the illegally
parked cars were effectuated under color of state law,
8 No. 09-2904
as one cannot misuse power one does not possess. Gibson
v. City of Chicago, 910 F.2d 1510, 1518 (7th Cir. 1990).
When officials possess no authority to act, we have
found that their conduct is outside the ambit of § 1983.
See id. (“[W]e have found no authority for expanding
this concept of [acting under color or pretense of law] to
encompass the actions of an official who possessed abso-
lutely no authority to act but nonetheless assumed the
position of an imposter in pretending that he did.”)
(emphasis in original). See also Vanderlinde v. Brochman,
792 F. Supp. 52, 53-54 (N.D. Ill. 1992) (“Just because
[defendants, two firefighters who physically assaulted
plaintiffs] may have proclaimed themselves as ‘the law
in Oak Lawn’ does not of course make it so. . . . And
the fact that [defendants] had and exhibited badges
evidencing their status as firefighters does not somehow
convert them into the equivalent of off-duty law enforce-
ment officers within the scope of the Section 1983 cases
that find the ‘under color of law’ requirement satisfied
in some factual contexts.”).
In Hughes v. Meyer, 880 F.2d at 969, a game warden of
the Wisconsin Department of Natural Resources pro-
vided local sheriffs with information regarding the plain-
tiffs’ alleged attempt to falsely imprison him, thereby
causing the plaintiffs’ arrest. The plaintiffs brought a
§ 1983 action against the warden and the sheriffs,
alleging that the defendants violated their rights
under the Fourth Amendment by arresting them without
probable cause. We found that the game warden’s pro-
vision of information about the alleged criminal act was
not under color of state law. Id. at 972. While the warden
No. 09-2904 9
had the authority to enforce Wisconsin’s gaming laws,
“his authority presumably does not extend to the gen-
eral enforcement of state law; he is a game warden,
charged only with enforcing the state’s game laws, not
the full panoply of criminal laws such as those against
false imprisonment.” Id. Like the game warden in
Hughes, Price’s actions were not done by virtue of the
authority granted to him by his employment. Price had
no authority to undertake any sort of enforcement
action in response to the complaints he received about
the illegally parked cars in front of Midnight Auto, and the
plaintiffs have failed to allege facts demonstrating that
Price’s conduct was related to the performance of his
duties as an alderman.
The cases in which we have found that an official’s
conduct may constitute state action even when the
conduct exceeds the official’s grant of authority are of no
assistance to the plaintiffs here. In Lopez v. Vanderwater,
620 F.2d 1229, 1236 (7th Cir. 1980), we held that “[a]ction
taken by a state official who is cloaked with official
power and who purports to be acting under color of
official right is state action and is taken under color of
state law whether or not the action is in fact in excess of
the authority actually delegated to the official under
state law.” There, we determined that the defendant
judge’s actions in illegally prosecuting the plaintiff could
form the basis of the plaintiff’s § 1983 claim despite
their non-judicial nature because he “was able to take
his prosecutorial acts because he was cloaked with the
office of judge. His use of that office to prosecute
Lopez was action under color of state law.” Id. at 1237.
10 No. 09-2904
Unlike the plaintiff in Lopez, however, the plaintiffs
here have made no substantive contention that Price
attempted to cloak himself in his authority as alderman
during the confrontation with Wilson. The complaint is
devoid of any allegation that Price bore any indicia
of his position as an alderman or that he invoked his
aldermanic office in any way, even to identify himself as
an alderman at any point during the confrontation. Fur-
ther, there are no other allegations indicating that
Price’s conduct was contemplated within the scope of
his aldermanic authority, and the failure to identify
oneself as a state official is inconsistent with being
cloaked in one’s official authority. Cf. Pickrel, 45 F.3d at
1118 (finding that off-duty police officer who physically
attacked plaintiff at restaurant could have been acting
under color of state law because he was wearing his
police uniform, displaying his badge, wearing his gun,
and his marked squad car was outside the restaurant).
Price’s confrontation with Wilson amounts to no
more than a dispute between private citizens. A private
citizen may not be liable under § 1983 unless the citizen
becomes a public officer pro tem or conspires with a
public employee to deprive a person of his constitutional
rights. Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir.
2002). The plaintiffs have made no allegation that
Price’s conduct fits into either category, and without so
alleging, the complaint fails to demonstrate that Price
was acting under color of state law. See Hughes, 880 F.2d
at 972 (concluding that game warden did not act under
color of state law because his conduct was “functionally
equivalent to that of any private citizen”). The plain-
No. 09-2904 11
tiffs “may not avoid dismissal . . . simply by attaching
bare legal conclusions to narrated facts which fail to
outline the basis of their claims.” Perkins v. Silverstein, 939
F.2d 463, 466 (7th Cir. 1991).
As we conclude that Price did not act under color of
state law, we affirm the district court’s dismissal of
Counts I2 and II3 of the complaint. Because the federal
claims were properly dismissed, it was also appropriate
2
To the extent that Count I purports to raise a claim under 42
U.S.C. § 1985, it also fails to state a claim. The only conceivably
applicable subsection is § 1985(3), which requires that a plain-
tiff allege, among other things, that the defendants inten-
tionally conspired to deprive him of equal protection of the
laws. The complaint makes no such allegation, but rather
consists mainly of conclusory allegations, which is insufficient
to meet the pleading standards of Rule 8 of the Federal Rules
of Civil Procedure. See Fed. R. Civ. P. 8; Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009) (Rule 8 “demands more than an un-
adorned, the-defendant-unlawfully-harmed-me accusation.”).
3
To the extent that Count II asserts a municipal liability claim
against the City, it also fails. While a municipality can be
found liable under § 1983 when the municipality’s policy or
custom inflicts the injury, Monell v. Dep’t of Social Svcs., 436
U.S. 658, 694 (1978), the plaintiffs have not alleged any such
policy or custom. Instead, they argue that the City “failed to
train” Price. This, however, is not a valid basis for the
City’s liability since it does not have the ability to train, super-
vise, or otherwise discipline Price, who is an elected official.
See Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995)
(“It is plain that the county was properly dismissed; Illinois
sheriffs are independently elected officials not subject to the
control of the county.”) (citation omitted).
12 No. 09-2904
for the district court to dismiss the pendent state law
claims in the absence of any independent basis for
federal jurisdiction. See Williams v. Aztar Ind. Gaming Co.,
351 F.3d 294, 300 (7th Cir. 2003).
III. CONCLUSION
The district court’s dismissal of the plaintiffs’ complaint
is A FFIRMED.
10-4-10