In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3252

Nickolaj Latuszkin,

Plaintiff-Appellant,

v.

City of Chicago,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1331--Robert W. Gettleman, Judge.

Argued March 6, 2001--Decided March 23, 2001
PUBLISHED MAY 14, 2001/*


  Before Fairchild, Cudahy and Ripple,
Circuit Judges.

  Fairchild, Circuit Judge.   Nickolaj
Latuszkin sued the City of Chicago and
Chicago police officer George Wilson
after Wilson, while driving under the
influence of alcohol, struck and killed
Mr. Latuszkin’s wife, Sofia Latuszkin. At
issue here is Mr. Latuszkin’s claim
against the City under 42 U.S.C. sec.
1983, which the district court dismissed
under Rule 12(b)(6) for failure to state
a claim. While we disagree with the
district court’s reasoning, we affirm the
dismissal on other grounds.

  According to Mr. Latuszkin’s complaint,
Wilson and other Chicago police officers
held a party in the parking lot of the
25th Police District during the early
morning hours of June 13, 1998. During
the party, the officers drank large
amounts of alcohol, fired their weapons
into the air and at passing trains,
erected a bonfire fueled by "unlawfully
appropriated property," and intimidated
and arrested members of the public who
complained about the party. After leaving
the party in his own car, an intoxicated
Wilson, while driving in the City of
Elmwood Park, Illinois, attempted to pass
a vehicle on the right, drove onto a
sidewalk, and struck Mrs. Latuszkin,
killing her.
  In December 1998 Mr. Latuszkin, as the
administrator of his wife’s estate, filed
a wrongful death and survival action
against Wilson in Cook County Circuit
Court. In June 1999 Mr. Latuszkin amended
his complaint to add the City as a
defendant on both state law claims. In
the amended complaint Mr. Latuszkin
alleged that the officers at the 25th
District had held parties involving
similar conduct on "several occasions,"
and that the conduct of the officers at
those parties was "open and notorious."
Mr. Latuszkin further alleged that the
Chicago Police Department’s (CPD) rules
prohibited the officers’ conduct, but
that superior officers and supervisory
personnel "consciously chose" to
disregard the behavior. According to Mr.
Latuszkin, the CPD, by allowing the
illegal parties to continue, had shown
"utter indifference to or conscious
disregard of" the safety of others and
had led the officers to believe that they
were above the law.

  In February 2000 Mr. Latuszkin amended
his complaint for a second time, adding a
count seeking liability of the City under
sec. 1983. In the second amended
complaint Mr. Latuszkin adopted by
reference his previous allegations and
further alleged that the CPD had
"deliberately failed or refused to
satisfy" its duty to regulate its
officers so as to prevent them from
depriving people of their constitutional
rights. Mr. Latuszkin asserted that this
failure reflected a "policy, procedure,
and practice of deliberate indifference"
to such rights and was the foreseeable
cause of Mrs. Latuszkin’s death. In
response, the City removed the case to
federal court.

  In August 2000 the district court
granted the City’s motion to dismiss Mr.
Latuszkin’s sec. 1983 claim. The district
court read Mr. Latuszkin’s complaint as
an attempt to allege a widespread
practice of the City so permanent and
well settled as to constitute a custom of
the City. The court, citing City of
Oklahoma City v. Tuttle, 471 U.S. 808,
820 (1985), held that Mr. Latuszkin
failed to state a claim under sec. 1983
because he had not alleged that the
practice caused more than a single
constitutional violation. Therefore, the
district court dismissed Mr. Latuszkin’s
sec. 1983 claim and remanded his state
law claims to state court.

  On appeal Mr. Latuszkin argues that the
district court construed his complaint
too narrowly in finding that he alleged
only one incident of unconstitutional
conduct. He asserts that the municipal
policy at issue is the City’s widespread
practice of consciously disregarding
unlawful activity by its police officers,
not simply that the City is failing to
stop the parties. Mr. Latuszkin asserts
that the parties are evidence of the
City’s policy. Mr. Latuszkin argues that
these allegations sufficiently state a
claim under the notice pleading standard
for sec. 1983 municipal liability suits.
See Leatherman v. Tarrant County
Narcotics Intelligence and Coordination
Unit, 507 U.S. 163 (1993).

  This court reviews a 12(b)(6) dismissal
de novo, taking all the well-pleaded
allegations as true. See McTigue v. City
of Chicago, 60 F.3d 381, 382 (7th Cir.
1995). A plaintiff’s complaint in a sec.
1983 municipal liability claim need not
meet any heightened pleading standard,
but rather must simply set forth
sufficient allegations to place the court
and defendants on notice of the gravamen
of the complaint. See McCormick v. City
of Chicago, 230 F.3d 319, 323-24 (7th
Cir. 2000). A dismissal is proper only if
there is no set of facts consistent with
the allegations in the complaint upon
which relief could be granted. See Sledd
v. Linsday, 102 F.3d 282, 289 (7th Cir.
1996).

  A municipality may not be held liable
under sec. 1983 on a respondeat superior
theory. See Monell v. Department of
Social Serv., 436 U.S. 658, 690 (1978).
Therefore, Mr. Latuszkin needed to claim
that his wife’s death was caused either
by (1) the enforcement of an express
policy of the City, (2) a widespread
practice that is so permanent and well
settled as to constitute a custom or
usage with the force of law, or (3) a
person with final policymaking authority.
See McCormick, 230 F.3d at 324.

  Mr. Latuszkin correctly argues on appeal
that the district court erred in applying
Tuttle to this case because Tuttle deals
with the requirements for proving the
existence of a custom. In Tuttle, the
Supreme Court reversed a jury finding of
municipal liability because the plaintiff
had been allowed to prove the existence
of a municipal policy of inadequate
training from the one shooting incident
at issue in the case. See Tuttle, 471
U.S. at 823-24. Mr. Latuszkin’s case,
however, is at the pleading stage where
the court must assume that he can prove
his allegations, and therefore the Tuttle
standards for proof at trial do not apply
here. See, e.g., McCormick, 230 F.3d at
326.

  Mr. Latuszkin’s complaint must be
dismissed, however, because he claimed no
more than a policy or custom of the CPD.
Nowhere did he claim a policy or custom
of the City. A municipality may only be
held liable where it is the moving force
behind the injury because some
policymaker made a deliberate choice to
act or not act in a certain way. See,
e.g., Board of the County Comm’r of Bryan
County v. Brown, 520 U.S. 397, 404
(1997); City of Canton v. Harris, 489
U.S. 378, 389 (1989); Monell, 436 U.S. at
694. The City correctly notes that the
complaint only alleges that the CPD and
its supervisory officials turned a blind
eye to the parties. The complaint does
not allege any facts tending to show that
City policymakers were aware of the
behavior of the officers, or that the
activity was so persistent and widespread
that City policymakers should have known
about the behavior. For example, the only
specific individuals identified by Mr.
Latuszkin as failing to stop the parties
are CPD superior officers and supervisors
at District 25. These individuals do not
qualify as policymakers for the City. See
Auriemma v. Rice, 957 F.2d 397 (7th Cir.
1992) (holding that the Superintendent of
Police is not a policymaker for the
City). Furthermore, nothing in Mr.
Latuszkin’s complaint suggests that a few
parties held in a police department
parking lot should have come to the
attention of City policymakers. Without a
link between the City and the alleged
policy, no claim for municipal liability
can survive.

  Mr. Latuszkin’s complaint also fails to
state a claim because his allegations
fail to establish any violation of his
wife’s constitutional rights. Mr.
Latuszkin alleged that the City violated
his wife’s right to substantive due
process of law when Wilson struck her
with his car. Governmental bodies,
however, generally have no constitutional
duty to protect individuals from the
actions of private citizens. See DeShaney
v. Winnebago County Dep’t of Soc. Serv.,
489 U.S. 189, 195 (1989). Therefore
because Wilson was acting as a private
citizen, rather than as a police officer,
when he killed Mrs. Latuszkin, none of
her federally protected rights were
violated.

  Mr. Latuszkin correctly asserts that a
finding that Wilson acted under color of
state law is not foreclosed by Wilson
being off-duty at the time of the
accident. See Robles v. City of Fort
Wayne, 113 F.3d 732, 735 n.2 (7th Cir.
1997); Pickrel v. City of Springfield, 45
F.3d 1115, 1118-19 (7th Cir. 1995)
(reversing dismissal that was based on
district court’s finding that officer was
off-duty and therefore could not have
acted under color of state law); Gibson,
910 F.2d at 1517; see Revene v. Charles
County Comm’r, 882 F.2d 870, 873 (4th
Cir. 1989) (plaintiff’s admission that
police officer was off-duty, out of
uniform, and driving his own vehicle does
not necessarily establish that officer
did not act under color of state law).

  The important consideration, however, in
determining whether an officer is acting
under color of state law is the nature of
the specific acts performed. See Pickrel,
45 F.3d at 1118-19. The acts that Mr.
Latuszkin alleges Wilson performed are
not of the type that suggests that Wilson
was acting under color of law. See, e.g.,
Huffman v. County of Los Angeles, 147
F.3d 1054, 1058 (9th Cir. 1998) (drunk
off-duty police officer who was not
wearing uniform, using his own gun, and
never identified himself as an officer,
was not acting under color of state law
when he shot plaintiff); Roe v. Humke,
128 F.3d 1213, 1216 (8th Cir. 1997) (off-
duty officer who assaulted minor not
acting under color of state law where
officer was not wearing gun or badge,
driving his own vehicle, and not acting
pursuant to his official duties). First,
the complaint does not allege that Wilson
acted under color of law. Second, Wilson
was driving his own car while drunk and
outside of Chicago. Furthermore, the
complaint makes no allegation that Wilson
was engaged in police activity, that he
displayed any police power, or that he
possessed any indicia of his office at
the time of the accident. Because Wilson
was engaged in entirely private behavior
at the time of the accident, there is no
claim for the violation of due process
under DeShaney.

  For the foregoing reasons we AFFIRM the
dismissal of Mr. Latuszkin’s complaint
for failure to state a claim.

FOOTNOTES

/* This appeal was originally resolved in an unpub-
lished order of March 23, 2001. Subsequently, we
granted the appellee’s request to convert the
order to a published opinion.
